Thursday, January 30, 2003
.Com Bust Kills Ailing Law Firm
Brobeck, Phleger & Harrison shutters after 77 years in business
Partners at the San Francisco law firm of Brobeck, Phleger & Harrison decided yesterday to wind down the firm, bringing to an end a 77-year-old Bay Area institution that rose flamboyantly and rapidly on the Internet boom.
The decision came after efforts to merge with Morgan Lewis & Bockius — a 1,100-lawyer firm whose largest offices are in Philadelphia, Washington and New York — failed on Wednesday, said William Sullivan, who is head of the national securities practice at Brobeck.
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"It is a stunning and incredible tragedy," said Barry S. Levin, chairman of Heller Ehrman White & McAuliffe, another San Francisco firm. "A lot of people are going to want to understand how a firm of the stature of Brobeck could end up dissolving. Whether it's the Internet boom or growing too fast for the volume of work or too much emphasis on one practice area, I don't know."
Brobeck employs just over 500 lawyers around the country, down from more than 900 in 2000; it lost nearly one-third of its lawyers last year. Although the firm was founded in 1926 — making it ancient in the San Francisco legal market — it became far more prominent in the late 1990's during the dot-com boom. It grew rapidly by hiring law school graduates eager to live in San Francisco and work on the fringes of the high-technology economy.
Its partners took home nearly $1.2 million each, on average, in 2000. The firm was also one of the first to offer lawyers fresh out of law school salaries on par with those paid by New York law firms — as much as $125,000.
But those hefty salaries left Brobeck with high costs, and as some of the firm's clients stopped selling their stock, merging or in some cases operating, the firm found itself in an increasingly difficult position. While Brobeck has as clients a number of big companies, including Cisco Systems, Compaq and Gap, it tried to diversify its customer base too late, lawyers at other firms said.
American Justice -- Shoe bomber sentenced to life in prison
Judge William Young today presided over a contentious sentencing hearing for convicted Al Qaeda terrorist Richard Reid, who was too scared, too incompetent or too sweaty to ignite his explosive shoes on American Airlines Flight #63 over the North Atlantic. At the end of the hearing, Judge Young took the disheveled terrorist to task:
"You're a big fellow," the judge said. "But you're not that big. You're no warrior. I know warriors. You are a terrorist. A species of criminal guilty of multiple attempted murders."
The judge then pointed to the American banner flying behind his bench and, his voice rising too, issued his own warning:
"See that flag, Mr. Reid? That's the flag of the United States of America. That flag will fly there long after this is all forgotten. That flag still stands for freedom. You know it always will."
Following that comment, Reid stood up, shaking his fist and yelling at the judge as he was hauled out of the courtroom by 4 U.S. Marshals.
"That flag will be brought down on the day of judgment," Reid shouted, "and you will see in front of your Lord, my Lord, and then we will know."
Unmoved by this outburst, Judge Young sent Reid to prison with the following thought.
"We are not afraid of any of your terrorist co-conspirators, Mr. Reid. We are Americans. We have been through the fire before.
"You," he added, "are not an enemy combatant. You are a terrorist. And we do not negotiate with terrorists. We hunt them down one by one and bring them to justice."
Apology: The news tip about Chief Justice Rehnquist was wrong, and my "publish" command to delete that post did not go through my Internet connection. Thus, I've had an absolutely wrong and boneheaded post online for the last 9 hours. Mea culpa, mea culpa, mea maxima culpa. Needless to say, I have taken my source to task.
Wednesday, January 29, 2003
Politics and Judicial Confirmation II
See also the comments by UCLA Professor Stuart Banner at the Volokh Conspiracy on Jeff Sutton's hearing today before the 6th Circuit. Among other things, Prof. Banner clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and recently published a book on capital punishment in America. He's one of the smartest law professors I've ever talked to, and his comments are quite insightful.
Politics and Judicial Confirmation
Chris Baker's comments at Half Baked on today's Senate Judiciary Committee deserve notice. He rightly points out the problem with holding lawyers accountable for every client they've ever represented, or every stand they've taken. After all, Chris reminds us, lawyers are paid to be advocates. They ought not be second-guessed by the Senate Judiciary Committee for strong advocacy or unpopular defenses -- even awful clients deserve to be represented by good counsel on their day in court.
Excerpt from AP Story:
Democratic senators criticized Sutton for attempts to limit federal civil rights protections and gut or weaken protections for state employees with disabilities and older workers. The Columbus, Ohio, lawyer argued successfully in a Supreme Court case in 2000 that Congress exceeded its authority by permitting state workers to sue their states under the Americans With Disabilities Act.
``How can we be sure you're not going to continue that agenda when you're on the court?'' asked Sen. Edward Kennedy, D-Mass.
Sutton said he has represented all types of people and organizations as a lawyer — including murderers — guaranteeing that some Judiciary Committee members will disagree with his clients. "I don't stand a chance in trying to become a judge if one looks at all of my clients and decides whether they agreed with their views," he said.
``I'm trying very hard to show you that I would be an objective judge and that the client I would have is ... the rule of law, not a former client,'' Sutton added.
Slate: Chance of war rises from 80 to 84 percent
Bush says 1) U.S. intelligence shows Saddam is hiding WMD, silencing scientists, and helping al-Qaida; and 2) Powell will present this intelligence to Security Council Feb. 5. Bush indicates Saddam has blown "his final chance." Britain agrees Iraq is in "material breach" of U.N. resolution. Blair will lobby European leaders to support war. Russia says it could end up supporting war but now sees no "grounds for the use of military force."
Again, William Saletan is my favorite of all the media tea-leaf readers. It's still an unexact science, especially considering that he does not have access to any of the classified information that official decisionmakers are working from. But so far, his notes have been on target.
"Amateurs talk tactics... professionals talk logistics"
So says a U.S. Marine Corps major working in the Kuwaiti desert, where the Marines are busy putting troops and equipment together into force packages for a possible war in Iraq. This is the nuts & bolts work of preparing for war. (See this Washington Post article) You draw your equipment, do Preventive Maintenance Checks & Services (PMCS), fix any deficiencies, and then start using the equipment to build familiarity and work out any problems out of the box. Leaders continue to do pre-combat checks and pre-combat inspections right up until the minute the troops cross the line-of-departure for combat. This is the unglamorous work of military professionals -- what soldier and Marines do before the shooting starts. But when you pull the trigger in combat, it is this detailed work that makes the difference between a click and a boom.
For the past week, about 500 Marine logistics specialists have worked around the clock, unloading, repairing and assembling enough equipment to supply a division of 17,000 for a month-long operation. This phase of the U.S. military buildup in Kuwait, although unglamorous, is among the most important should the troops be sent to war, Marines here said.
* * *
Hundreds of Marines, many of whom arrived in Kuwait just three days ago, spent the day testing their gear and taking inventory to make sure everything they will need is in place. They are joining several thousand Marines already in Kuwait from the 1st Marine Expeditionary Force, based at Camp Pendleton, Calif.
* * *
The Marines have staged thousands of tons of equipment in areas where it can be more quickly transported to deploying troops than if it were stored at bases in the United States. Civilian container ships loaded with such pre-positioned gear steamed into the Persian Gulf from the Mediterranean Sea and the Indian Ocean and arrived at a port near Kuwait City early last week. Marine logistics specialists met the ships and hauled away the cargo, which included: stuffed shipping containers and steel mesh "shark cages" for bundling in smaller equipment, Abrams tanks, Amtrak Amphibious Assault Vehicles, seven-ton trucks, M-198 howitzer artillery pieces and hundreds of Humvee four-wheel drive vehicles. They brought the equipment to this staging area, called the Arrival Assembly Operations Element, in the northern Kuwaiti desert.
* * *
Maj. David Nathanson, 33, of Newark, a logistics officer for the 7th Marine Regiment, had this to say: "The work often falls outside the spotlight, but behind the scenes is a huge effort that can make all the difference. Without all the right parts, a tank is just 70 tons of steel."
KUSP Radio (Santa Cruz NPR Affiliate) - "Talk of the Bay" - Wednesday, January 29th, 6:30 p.m.
Joe Hall, host of Talk of the Bay, has asked me to join Mark Eitelberg, a Professor at the Naval Post Graduate School, for a half-hour discussion of Rep. Charlie Rangel's proposal to institute a draft for America's military. Professor Eitelberg is one of the nation's leading authorities on America's All-Volunteer Force. Over the past 27 years, he has directed several dozen-research projects on the voluntary military; he's now a professor at the Naval Postgraduate School in Monterey. I'm still flattered by Mr. Hall's invitation, especially given Prof. Eitelberg's credentials. I think he invited me because of my December Washington Monthly article on women in combat, and my recent service in America's all-volunteer Army.
In any case, please tune in -- I think it will be a good program. KUSP has streaming audio capability on their website, so you should be able to listen from anywhere via the Internet.
Tuesday, January 28, 2003
Imminence, Iraq and Terrorism
I thought that President Bush did an excellent job tonight in laying out the arguments for why America must press the fight against Iraq and terrorists. (Speech text available here) Imminence of threat is not something you can gauge precisely; it's something that can only be precisely known in hindsight. When failure to perfectly judge imminence might mean thousands -- or millions -- of dead Americans, the President correctly errs on the side of caution. Pre-emption is the logical response to a threat which serves no notice of attack.
"Today, the gravest danger in the war on terror the gravest danger facing America and the world is outlaw regimes that seek and possess nuclear, chemical, and biological weapons. These regimes could use such weapons for blackmail, terror, and mass murder. They could also give or sell those weapons to their terrorist allies, who would use them without the least hesitation.
"This threat is new; America s duty is familiar. Throughout the 20th century, small groups of men seized control of great nations built armies and arsenals and set out to dominate the weak and intimidate the world. In each case, their ambitions of cruelty and murder had no limit. In each case, the ambitions of Hitlerism, militarism, and communism were defeated by the will of free peoples, by the strength of great alliances, and by the might of the United States of America. Now, in this century, the ideology of power and domination has appeared again, and seeks to gain the ultimate weapons of terror. Once again, this Nation and our friends are all that stand between a world at peace, and a world of chaos and constant alarm. Once again, we are called to defend the safety of our people, and the hopes of all mankind. And we accept this responsibility."
"Before September 11, 2001, many in the world believed that Saddam Hussein could be contained. But chemical agents and lethal viruses and shadowy terrorist networks are not easily contained. Imagine those 19 hijackers with other weapons, and other plans this time armed by Saddam Hussein. It would take just one vial, one canister, one crate slipped into this country to bring a day of horror like none we have ever known. We will do everything in our power to make sure that day never comes.
"Some have said we must not act until the threat is imminent. Since when have terrorists and tyrants announced their intentions, politely putting us on notice before they strike? If this threat is permitted to fully and suddenly emerge, all actions, all words, and all recriminations would come too late. Trusting in the sanity and restraint of Saddam Hussein is not a strategy, and it is not an option."
President Bush punctuated this part of his speech with a message for America's men and women in uniform:
"Tonight I also have a message for the men and women who will keep the peace, members of the American Armed Forces: Many of you are assembling in and near the Middle East, and some crucial hours may lie ahead. In those hours, the success of our cause will depend on you. Your training has prepared you. Your honor will guide you. You believe in America, and America believes in you."
"Sending Americans into battle is the most profound decision a president can make. The technologies of war have changed. The risks and suffering of war have not. For the brave Americans who bear the risk, no victory is free from sorrow. This Nation fights reluctantly, because we know the cost, and we dread the days of mourning that always come."
Slate: Chances of War Jump to 80%
William Saletan, an experienced reporter who serves as Slate's chief political correspondent, rates daily the chances of a war with Iraq. His numbers have hovered between 50-70 percent for most of the last few months. Today, the rating jumped to 80%. Of all the tea-leaf readers, I think Mr. Saletan is one of the best. This jump makes me think some sort of action is imminent.
"Dispute sharpens and solidifies between Blix and Iraq. Blix: "Iraq appears not to have come to a genuine acceptance—not even today—of the disarmament which was demanded of it. … [Iraq's Dec. 7 declaration] does not seem to contain any new evidence that would eliminate the questions." Iraq's U.N. ambassador: "Iraq has fully complied with all its obligations. … All the remaining disarmament issues referred to in Mr. Blix's statement were actually explained in our declaration." U.S. says it will publicly disclose intelligence showing Iraq is hiding WMD from inspectors. Peace spin: Security Council skeptics still aren't budging. War spin: Iraq is eliminating the alternatives to war."
Norman Schwarzkopf: Give Peace a Chance
Tom Ricks reports in today's Washington Post that retired-General Norman Schwarzkopf, commander of U.S./Allied forces in Gulf War I, thinks America ought to wait before launching a new offensive on Iraq. Schwarzkopf has broken from the Army's official establishment before, both in publishing his detailed autobiography and in refusing to join a number of official think-tanks, forums and after-action reviews following the Gulf War. In retirement, he has often provided the voice of an iconoclastic and irascible senior officer who has seen a lot -- and who zealously guards his right to say what he thinks.
The general who commanded U.S. forces in the 1991 Gulf War says he hasn't seen enough evidence to convince him that his old comrades Dick Cheney, Colin Powell and Paul Wolfowitz are correct in moving toward a new war now. He thinks U.N. inspections are still the proper course to follow. He's worried about the cockiness of the U.S. war plan, and even more by the potential human and financial costs of occupying Iraq.
* * *
In fact, the hero of the last Gulf War sounds surprisingly like the man on the street when he discusses his ambivalence about the Bush administration's hawkish stance on ousting Saddam Hussein. He worries about the Iraqi leader, but would like to see some persuasive evidence of Iraq's alleged weapons programs.
"The thought of Saddam Hussein with a sophisticated nuclear capability is a frightening thought, okay?" he says. "Now, having said that, I don't know what intelligence the U.S. government has. And before I can just stand up and say, 'Beyond a shadow of a doubt, we need to invade Iraq,' I guess I would like to have better information."
NYT: Service Academies Defend Use of Affirmative Action
Today's NY Times runs an article (that the Wall Street Journal ran last week) saying that the Bush Administration's brief in Grutter v. Bollinger may contradict its use of race in admissions to the four service academies. However, I don't think this is correct as a matter of law. First, the Solicitor General's Brief in Grutter allows for diversity per se as a compelling government interest. Second, the SG's brief does not say that all uses of race are impermissable -- only that Michigan's program is not narrowly tailored to achieve a compelling government interest. The programs at America's military academies will probably survive, for three reasons:
1) The government interest at stake (see below) is considerably more compelling than that in achieving diversity per se in higher education. Unit cohesion is the bedrock of military effectiveness, and a diverse officer corps contributes immeasurably to unit cohesion in a military which is more racially diverse than society at large.
2) The West Point, Naval Academy, Air Force Academy, and Coast Guard Academy admissions systems are arguably more narrowly tailored to achieve that compelling interest than the ones at Michigan. Admissions officers at each academy spend more time on each application and carefully screen the applications of all students who may be offered admission. Moreover, there's a clear nexus between the goal (diverse military officer corps) and the means used (selection for the academy), since one necessarily leads to the other. It's not like admitting minority students to law school and hoping they work in public-interest law (instead for Gibson Dunn). Students who graduate from the academy automatically go onto serve, thus fulfilling the government's interest in this situation.
3) The Constitution explicitly grants powers to Congress to make regulations for the military (Art. I, Sec. 8), and to the President to command the military (Art. II). The Supreme Court typically defers to the military on a wide range of issues because it recognizes the primacy of the other two branches in making military policy. It would probably do so here as well.
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At each academy, which the federal government operates, admissions officers cited two main reasons for racial diversity in admissions, one singular to the military and one widely heard in higher education.
The familiar argument, as expressed by Col. Michael L. Jones, dean of admissions at West Point, is: "We like to represent the society we come from in terms of the student body's undergraduate experiences. So having a diverse student body allows personal growth in areas where people may not have gotten it otherwise. We want people to understand the society they will defend."
The military argument is that with racial minorities making up from 28 percent of the enlisted personnel in the Air Force to 44 percent in the Army, almost all-white ranks of officers would hurt morale.
"We want to build an officer corps," said Dave Vetter, the Naval Academy dean of admissions, that "reflects the military services of which we are a part." Colonel Jones said, "Officers of color are important as role models in the Army."
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Monday, January 27, 2003
Breaking News -- President Bush plays his trump card on Iraq
Bob Woodward reports in tomorrow's Washington Post that the Bush Administration has decided to declassify enough intelligence to paint an accurate picture of Iraq's treachery. A senior State Department official said the information the administration plans to release will show what the Iraqis are "doing, what they're not doing, how they're deceiving."
Analysis: This is the Administration's "ace in the hole" -- this is what the world has been waiting for. A lot of smart folks have predicted this would happen as public opinion began to ebb. Given last week's statements by France and Germany, this week's statements in Davos, and mounting protests around the country, the timing seems right. There's simply no way the Administration would lay so much on the line, ship so many troops over to CENTCOM, make so many statements in the UN, and press the world so hard unless it had such information in its possession. We won't know for certain how bad this stuff is until it's revealed, and then until UN inspectors verify this on the ground. But it will definitely put Saddam between a rock and a hard place. And ultimately, this intelligence may provide the tool to pry open his vaults.
U.S. to Make Iraq Intelligence Public
Evidence of Weapons Concealment to Be Shared in Effort to Boost Support for War
By Bob Woodward - Washington Post Staff Writer
Tuesday, January 28, 2003; Page A01
The Bush administration has assembled what it believes to be significant intelligence showing that Iraq has been actively moving and concealing banned weapons systems and related equipment from United Nations inspectors, according to informed sources.
After a lengthy debate over what and how much of the intelligence to disclose, President Bush and his national security advisers have decided to declassify some of the information and make it public, perhaps as early as next week, in an effort to garner more domestic and international support for confronting Iraqi President Saddam Hussein with military force, officials said.
"The United States possesses several pieces of information which come from the work of our intelligence that show Iraq maintains prohibited weapons," Secretary of State Colin L. Powell said in an interview published yesterday in an Italian newspaper. "Once we have made sure it can be done safely, I think that in the next week or soon after we can make public a good part of this material."
The information was gathered by U.S. intelligence agencies from what officials characterized as an array of sources and methods. The administration believes it shows that senior Iraqi officials and military officers who report to members of Hussein's inner circle have personally directed the movement and camouflage of the weapons or have knowledge of the operations, the sources said.
The concealment efforts have often taken place days or hours ahead of visits by U.N. inspection teams, which have been operating in Iraq during the past two months, according to these accounts. In many cases, the United States has what one source called "compelling" intelligence that is "unambiguous" in proving that Iraq is hiding banned weapons.
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Powell Defends U.S. Foreign Policy in Davos
Secretary of State Colin Powell has arguably had more to do with crafting American foreign policy than anyone else in the last two decades. Serving first as National Security Adviser, then as Chairman of the Joint Chiefs of Staff (for two terms), and now as Secretary of State, Mr. Powell's vision of the world has shaped America's actions towards the world since the Reagan presidency. Now, Mr. Powell has gone on the offensive, speaking to a hostile forum of powerful Europeans and Americans at the World Economic Forum in Davos. Taking great umbrage at claims of American "imperialism," Mr. Powell eloquently corrected those in Davos who painted the U.S. as a latter-day colonialist empire:
Excerpt from Secretary Powell's Speech:
"I believe--no, I know, with all of my heart, that the United States can. I believe no less strongly that the United States has earned the trust of men, women and children around the world. Let's just go to Afghanistan. 10,000 American soldiers are in that country helping to create conditions of security. A new government, a new representative government, is in place. We see new roads, new hospitals, new schools, where girls can attend and gain the skills they will need to lead productive, meaningful lives.
"Afghanistan is one example of what we have accomplished in the global war against terrorism. The United States, together with the countries represented by many of you in this room, is making it more difficult for terrorists to move about, for them to find sanctuary, for them to communicate, for them to transfer money, for them to acquire weapons to carry out attacks against innocent people.
"We should be very proud of what has been accomplished in Afghanistan since we met in New York last year.
"I want to say one more thing about Afghanistan, which is reflective about the manner in which America carries out its responsibilities in the world. The American troops who are there went there in peace, working alongside now thousands of troops from more than a dozen countries, and they're all working together to help train Afghan police and military forces that will take their place, and as soon as our troops are needed no longer, they will depart.
"Afghanistan's leaders and Afghanistan's people know that they can trust America to do just this, to do the right thing. The people of Bosnia, the people of Kosovo, of Macedonia, they too know that they can trust us to do our jobs and then leave. We seek nothing for ourselves other than to help bring about security for people that have already suffered too much.
"The same holds true for the people of Kuwait. 12 years ago, we helped liberate their country, and then we left. We did not seek any special benefits for ourselves. That is not the American way. "
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Excerpt from Q&A Session
"I don't think I have anything to be ashamed of, or apologize for, with respect to what America has done for the world," he said in response to a question asking why the United States always falls back on the use of "hard power" instead of the "soft power" of diplomacy. Mr. Powell noted that the United States had sent its soldiers into foreign wars over the last century, most recently in Afghanistan, without having imperial designs on the territories it secured.
"We've put wonderful young men and women at risk, many of whom have lost their lives," he said, his voice growing hoarse. "We've asked for nothing but enough land to bury them in."
Sunday, January 26, 2003
You can uncross your fingers now...
I don't know about you, but I breathed another sigh of relief when the Super Bowl ended without any major security incidents. To most watching on TV, the security was transparent. For those in attendance, they felt it. But from a distance, I can tell you the security for this event rivaled that at the Olympics for depth and breadth. Various federal agencies were out in full force, including the FBI and Secret Service. The National Guard provided assets from its Civil Support Team, who were equipped to detect and respond to any release of chemical or biological agents. And a phalanx of National Guard, Calif. Highway Patrol, San Diego police, and others stood vigil around the stadium for the entire event. With few exceptions, the game went off without a hitch. Thank God for small miracles.
Total Information Awareness -- The Bio/Medical Component
In case you thought TIA just meant a merger of criminal, credit and diplomatic databases, think again. TIA may also mean the integration of medical data, something which may go further into the human psyche/body than any of the other areas which TIA is supposed to cover. Monday's New York Times reports that the CDC -- in collaboration with the Pentagon -- has developed a computerized public-health surveillance system for the United States. This system would monitor all sorts of indicators in the health arena, from symptoms in emergency rooms to prescriptions for particular kinds of antibioitics. It has enormous potential for public health, as well as anti-terrorism. But like TIA, it may require some careful calibration to avoid civil liberties problems.
"The emerging health monitoring network, officials and experts say, will provide information that could save lives if terrorists strike with deadly germs like smallpox or anthrax. In detecting attacks, a head start of even a day or two can greatly lower death rates by letting doctors treat rapidly and prevent an isolated outbreak from becoming an epidemic."
* * *
For decades, disease surveillance has valued accuracy over speed. Nurses, doctors and public health officers gather raw data, often using paper forms sent by mail. In the background, federal, state and private laboratories use advanced technologies to determine the causes of disease and confirm diagnoses. But the process tends to take days or even weeks.
Moreover, the system is narrow, revealing little about the nation's overall health. While the federal disease control center has more than 100 surveillance systems, most are designed to track a single organism or condition, like heart disease or flu virus. In addition, most are independent of one another.
The system has serious gaps. While laboratories usually comply with federal rules to report certain illnesses to health authorities, physicians often do not.
The military and the national weapons laboratories, increasingly worried about germ attacks, tried a new approach in the late 1990's. To learn of impending trouble quickly, they decided to scrutinize populations for clues of diseases before they were officially diagnosed. Experts zeroed in on how clusters of such symptoms as fever, cough, headache, vomiting, rash and diarrhea could suggest — but not prove — the presence of particular diseases, some of them lethal. The method was called syndromic surveillance.
* * *
An early military system was the Electronic Surveillance System for Early Notification of Community-Based Epidemics, or Essence. It drew medical data from some 400,000 members of the military and their dependents who lived in the Washington area — a major potential terrorist target, but hard for civilians to scan medically because of "the numerous city, county and state jurisdictions," according to a Defense Department statement.
After the 2001 terrorist attacks, the Pentagon's Defense Advanced Research Projects Agency put $12 million into an experimental program, Essence 2, which tracked millions of civilians in the Washington area for signs of bioterrorism. The program now reports to Admiral Poindexter, whose Total Information Awareness program was dealt a setback by the Senate late last week, its future now in doubt. Joe Lombardo, a civilian who runs Essence 2, which is based at the Johns Hopkins Applied Physics Laboratory in Maryland, said that although Admiral Poindexter's office finances the system, Essence 2 shares no data with his computer surveillance project. Essence 2, he said, gathers electronic records from drugstore chains, hospitals and physician groups. Mr. Lombardo said about a dozen people were developing the technology and collecting and analyzing the data.
Analysis: If TIA develops a new way for gathering, analyzing and making sense of public-health data, it could be the greatest leap forward in public health since the use of soap and antisepsis. Right now, the CDC's methods for gathering/disseminating this data are antiquated at best. A coherent, automated, universal system would go a long way towards solving problems like acute lethal pediatric disorders and food poisoning, not to mention bioterrorism. I truly hope that a balance can be struck here between civil liberties concerns and the good that Total Information Awareness can bring. This type of database won't just tell us about aberrational outbreaks of food poisoning; it can be used by medical researchers and epidemiologists to deduce all sorts of important conclusions from its data. We all stand to benefit a great deal from this kind of project.
Total Information Awareness -- Threat to Civil Liberties or Method of Ensuring Accurate Law Enforcement?
Last week, the Senate amended an authorization bill to include a reporting requirement for the Pentagon. The Defense Department may only proceed with its "Total Information Awareness" project if it submits a report to Congress on the details of the project, and the measures it's taking to protect civil liberties in the project. TIA is the massive database project sponsored by the Pentagon which would bring together information from all sources (private, public, intelligence, criminal, etc) to support national-security and criminal-investigative authorities. On Friday, House Speaker Dennis Hastert echoed the Senate's sentiments, saying he would endorse a similar amendment in the House.
Hastert, R-Ill., is concerned about the privacy implications of the research program, called Total Information Awareness, Hastert spokesman Pete Jeffries said. He said it remains unclear who will fight for the project when House and Senate lawmakers meet next month to decide its future. "Its fate is questionable," Jeffries said.
This makes it all but certain that such a reporting requirement will be added. In general, I agree with reporting requirements and the goals of Congressional oversight -- particularly for the Defense Department. (Some reporting requirements are quite odious though. A cursory read of Title 10, United States Code, will reveal hundreds of extraneous reporting requirements for the Pentagon that devour thousands of manhours to complete -- and are probably never read by Congress.)
However, TIA may be a good thing when it's eventually developed. I think the debate over TIA has been skewed, first by the William Safire NY Times column which broke the story, and subsequently by civil libertarians who have cast the issue as one of "Big Brother" instead of as a means to more accurately focus law enforcement. Here are the reasons why I think TIA is a good thing, and why the critics are wrong.
1. DARPA (Defense Advanced Research Projects Agency) does "deep" research, not near-term or short-term research. They develop ideas & concepts that may come to fruition in 30 years. Many of these ideas, in their infancy, are susceptible to misinterpretation because they are so powerful, and because the science they propose is so revolutionary. But we ought not discourage the basic research sponsored by DARPA because of its possible effects a generation in the future. We ought to instead develop control measures for that risk, and ensure the research does not lead to such harm.
Example: Among other things, DARPA created the Internet in the 1960s as a way for four universities (Berkeley, MIT, Stanford and UCLA) to communicate about sensitive defense-related research and technology. The interconnected network was designed to withstand a nuclear attack, because it would reroute itself around any destroyed links. Thirty years ago, no one could have predicted the evolution of DARPA-Net to the Internet of today. But imagine what would have happened if civil libertarians then had criticized it because of its potential for surveillance, or if movie studios had criticized it because they foresaw some Intellectual Property problems. The Internet might never have been built. TIA may have the same potential for the future, or it may have problems we don't know about. Scuttling it or any other DARPA project now, before it's designed or built, may chill research and innovation with the long-term potential to improve our lives.
2. American law enforcement agencies have a real problem with racial profiling; TIA may solve part of that problem. They often use race as a proxy for sweeping up terrorists because they lack any meaningful information about who is or is not a terrorist. Part of the problem stems from "indicators", as the Intelligence Community calls them. Indicators are pieces of information which mean things, and when analyzed, can indicate the presence or absence of something. Terrorists leave pieces of information which can indicate terrorist activity. But often, these indicators are relatively inocuous by themselves -- taking out large sums of cash, buying airplane tickets, taking self-defense lessons -- these things mean nothing by themselves, and indeed are activities that lots of innocent people do as well. Without knowing which indicators are important, and a system for tying together indicators from all sources, there is simply no way to put together the dots. A better system of gathering information and analyzing information will produce more accurate law enforcement. It will tell law enforcement what things to look for. Instead of looking for things like race, they will look for precise details of behavior that are the most probable indicators of terrorism. In theory, this will lead to greatly reduced need for racial profiling.
3. A related problem is the gathering/collation/cross-referencing of information. There currently exists no single system in America for gathering criminal-investigative information from local, state and federal agencies -- let alone combining such information with data from the Intelligence Community, State Department, or foreign agencies. This was cited, among other things, as a key failure in the Senate Select Committee on Intelligence's report on the failures of the Intelligence Community to prevent 9/11. TIA may represent the answer to this problem, by providing a relational database with sufficient breadth, depth and sophistication to bring together data from all these sources. As a footnote, Oracle already makes such databases for the private sector, and they are used quite well by credit bureaus and other private actors. This system would build on that technology, but attempt to make the system even more reliable (we all know that credit reports can have flaws sometimes). Gathering this information is absolutely critical. Terrorists fly below our radar because they show up as ordinary members of society. The clues they leave are usually innocuous, and tend to fall within the jurisdictions of separate agencies. (This is intentional -- al Qaeda doctrine teaches terrorists to exploit seams like federal/state, foreign/domestic, military/civilian, and to cross these lines when expedient.) America must have a system for gathering this information from all sources and putting it together. The amount of data is too large for a human analyst to deal with -- only a sophisticated computer database can put all this information together to find the right indicators of terrorist activity.
4. The system still has checks. TIA will not produce some Minority Report-like world where three pre-cogs sit in a vat and make decisions that lead automatically (without trial or evidence) to lifetime incarceration. TIA doesn't even provide enough information for "probable cause", as I understand the technology. Instead, TIA enables law enforcement to focus their scarce resources on where it really counts. Instead of surveilling the entire Arab-American population (a uniformly dumb idea), TIA would enable the FBI to surveil only those persons with certain indicators of terrorist activity (like repeated trips to certain countries or ties to certain individuals on the State Department's watchlist.) Ultimately, the government must still prove its case in court to incarcerate someone, and it must still try them before a jury or judge in most cases. The Article III courts stand as a bulwark against any slippery-slope problem here.
This is a tough issue, but one I think we need to resolve in favor of Total Information Awareness. The technology promises benefits that can barely be imagined right now, with costs that can be controlled and mitigated. In any case, I welcome your thoughts & feedback on these ideas.
Saturday, January 25, 2003
Q&A with Judge Jerry E. Smith of the U.S. Court of Appeals for the 5th Circuit (Houston)
Howard Bashman of Appellateblog poses 20 questions to Judge Smith and gets surprisingly candid answers. A sampling of questions includes:
1. What are your most favorite and least favorite aspects of being a federal appellate judge?
4. If you had to abandon your seat on the Fifth Circuit but in exchange could serve as a judge on any other U.S. Court of Appeals, which one would you choose and why?
9. Why have you decided not to adhere to the "Law Clerk Hiring Plan" that supposedly has the overwhelming support of federal appellate judges, and has your decision made it easier or more difficult to attract the sort of law clerks that you are seeking?
13. A lawyer with five years' experience is going to deliver his or her first appellate oral argument in any court before a three-judge panel that includes you. What advice do you have for this lawyer?
Appellateblog plans to host several more of these Q&A sessions with federal judges in the near future. Stay tuned.
I did a similar Q&A with Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit in 1996. A copy is available here if you're interested in reading his thoughts on everything from ideology to writing style.
FBI Teams Up With College Police -- Agencies join to investigate students who may be terrorists
Dan Eggen reports in today's Washington Post that the FBI has enlisted college police departments in its efforts to fight terrorism in the United States. Student visas were used by several of the 9/11 hijackers to enter the United States, and federal authorities have long looked to radical student organizations as an incubator for domestic/foreign terrorism. However, this move resurrects decades-old memories of FBI agents snooping on political groups on campus as part of J. Edgar Hoover's anti-dissidence strategies.
On at least a dozen campuses, the FBI has included collegiate police officers as members of local Joint Terrorism Task Forces, the regional entities that oversee counterterrorism investigations nationwide.
* * *
The FBI and many campus police officers view the arrangements as a logical, effective way to help monitor potential terrorist threats and keep better tabs on the more than 200,000 foreign nationals studying in the United States. Several of the Sept. 11 hijackers were enrolled as students at American flight schools, and one entered the country on a student visa but never showed up at the school.
* * *
...the effort has touched a nerve among some faculty and student groups, as well as Muslim activists, who fear that the government is inching toward the kind of controversial spying tactics it used in the 1950s and 1960s. With few restrictions, the FBI at the time aggressively monitored, and often harassed, political groups, student activists and dissidents.
* * *
Distrust of the FBI runs high among some faculty who remember the counterculture demonstrations of the 1960s. Under J. Edgar Hoover's 15-year COINTELPRO program, the bureau engaged in broad and questionable tactics aimed at monitoring and disrupting student activist groups.
* * *
The FBI has long had liaison relationships with police and security departments at some universities, particularly larger institutions with higher crime rates or heavy involvement in sensitive research areas, officials said. But the Sept. 11 attacks prompted the bureau to strengthen its links to local and state police departments, including those on college campuses.
I'm not wired into the Los Angeles-area Joint-Terrorism Task Force (JTTF), nor do I know exactly what the UCPD is doing in this area. But I know this issue carries a tremendous amount of baggage here in the UC system, because of extensive surveillance and police activity carried out against students in the 1960s and 1970s. I also know there's a cogent need for such surveillance today, given the number of immigrant students here and the sensitivity of some of the research done at UC. I'm pretty confident the FBI is striking a proper balance here, but this is something to keep an eye on.
Blogs of Note -- Just added these to the links area
Is That Legal? -- Thoughts and commentary from Eric Muller, a law professor at the University of Wyoming.
Rule 11 - A 'blog from a recent grad of the University of Michigan's law school; good ConLaw analysis.
Sheep Free Zone - Provocative commentary about legal and military stuff from Matt Bower, a former-Marine officer and law student.
Defense Tech - "The future of the military, law enforcement, and national security" by Noah Shachtman, who has written for a number of magazines and newspapers on these subjects.
Craig's Blog - Commentary on a wide variety of topics.
I recommend visits to these and the other 'blogs I have linked.
Why America needs to call up so many reservists to fight
Sunday's NY Times contains a good article by Thom Shanker on the push within the Pentagon to realign the mix of forces in the active and reserve parts of the U.S. military. Neither President Bush nor Secretary Rumsfeld enjoys the political and social consequences of calling up large numbers of reservists for extended tours of duty. However, the all-volunteer force was set up in such a way after Vietnam to require these callups, because a cabal of bitter generals decided then to hamstring future political leaders by placing certain key types of units in the reserves. The idea was that any future war would need a reserve callup, thus involving men/women from every part of America, thus requiring the President to have more political support than LBJ had in Vietnam.
While American military victories in conflicts including Iraq and Afghanistan helped exorcise other ghosts of Vietnam, the heavy reliance on the National Guard and Reserve remains a legacy of the armed service's frustration with that war.
Angered that President Lyndon B. Johnson, and then President Richard M. Nixon, declined to call up the reserves during the Vietnam War for fear of generating greater opposition to it, Gen. Creighton W. Abrams, the Army chief of staff, shaped the post-Vietnam mix of active and reserve forces to make sure that when America next went to war with its new all-volunteer force, hometown America would have to go along too.
This dependence on reserve components only grew after the end of the cold war and the decision to cut the military. The Pentagon and Congress wanted to keep as much tooth in the active force as it could afford, and pushed missions in the logistics tail to the reserves.
But mass mobilizations in the past year and a half raised concerns at the Pentagon and, just as important, on Capitol Hill. Many look to streamline the system to more nimbly counter the unpredictable terrorist threat. Others are going further, asking whether the number of active-duty personnel is too small — which translates directly into budgets — if the American military cannot fulfill global commitments without relying so heavily on the Guard and Reserve.
The biggest problem with using the reserves is time. The military's mobilization system was designed around a number of assumptions, including the assumption that we'd have weeks/months to mobilize troops and ship them to Central Europe or Korea for an all-out war. Recent experience has shown us these assumptions are unreliable; that our wily adversaries (like Al Qaeda) can slip away in the time it would take to mobilize the reserves. Another huge problem is training/resourcing. The reserves aren't resourced to train or maintain their equipment to the same level as the active force. But when they're called up, they're expected to be able to fight alongside the active force. This works well for certain support units -- Military Police, medical, supply, transportation -- because those units' soldiers often work in the same field as their military job, and the skills are less perishable. But it's virtually impossible to maintain proficiency on complex, collective tasks in large combat units like infantry battalions and brigades in the reserves.
Friday, January 24, 2003
Military Justice - Prediction for US/Canadian fratricide case
Fellow UCLA law student and former-USMC infantry officer Chris Baker has a good analysis of what should happen in the case of the two U.S. Air Force pilots charged with accidentally bombing Canadian soldiers in Afghanistan.
"...even though we owe our armed forces a tremendous amount of deference in the case of soldiers and airmen engaging in "self defense", there are several issues to suggest that these pilots were overly aggressive in disobeying an early-warning aircraft's order to "hold fire", and dropping a laser guided bomb from an altitude where they were virtually immune from the type of fire they claimed to be receiving. Accordingly, a court martial to determine the guilt or innocence of the pilots is in order."
Democracy at work: Congress uses reporting requirements to constraint Pentagon action
The Senate today added a rider to its appropriations bill which has the effect of stopping the Pentagon's "Total Information Awareness" project dead in the water. Reporting requirements exist throughout Title 10 and various defense authorization acts; they generally require the Pentagon to submit a written or testimonial report to Congress on some activity. In some cases, these requirements are written so that the Defense Department may not act in a certain way without first reporting to Congress. This is how the new Senate amendment works -- it requires the Pentagon to submit a report before it takes any further action to develop the TIA project. This report must include certain things, such as the way the DoD plans to minimize TIA's impact on civil liberties.
"The Senate measure requires the Pentagon to report to Congress on the goals of the program within 60 days of the bill's final passage, including recommendations from the Attorney General on minimizing the impact on civil liberties.
"The measure also would keep the Pentagon from deploying the program or transferring it to another department, such as the FBI (news - web sites) or the new Homeland Security department, without congressional authorization."
This has three main effects: 1) It stops the Pentagon program until the report is done; 2) It requires the Pentagon to consider certain things that Congress cares about (civil liberties) and revise its program to meet these concerns, and 3) Gives Congress an opportunity to review this program and make oversight decisions about it and its funding. This is the essence of how democracy works in practice in Washington. The will of the people is being expressed by Congress and used to constrain the actions of a government agency. It's rare that you see this work so well.
Denver Post: Pentagon plans for mass burial of U.S. soldiers killed by chem/bio agents
An unpleasant, but necessary, control measure to prevent further loss of life
In a special piece for today's Denver Post, Greg Seigle reports that the Pentagon has developed plans to cremate or bury en masse the bodies of American soldiers killed in combat by biological or chemical agents in Iraq. Such a plan existed in the 1st Gulf War, but was thankfully never implemented. It breaks with a half-century-old tradition of returning American soldiers after they've fallen in action for burial at home. American military officials acknowledge a powerful desire to bring every fallen soldier home, but also say the need to protect against future casualties outweighs any risk of further contamination. This is an extremely difficult issue, because it raises strong emotions on both sides. But ultimately, I think this decision is the right one. Accounting for every fallen man or woman is important, and giving closure to families is important. But we have to look after the welfare of all soldiers -- especially those still living. If burying casualties in the field means preventing future loss of life, then we must make that painful choice.
WASHINGTON - The bodies of U.S. soldiers killed by chemical or biological weapons in Iraq or future wars may be bulldozed into mass graves and burned to save the lives of surviving troops, under an option being considered by the Pentagon.
Since the Korean War, the U.S. military has taken great pride in bringing home its war dead, returning bodies to next of kin for flag-draped, taps-sounding funerals complete with 21-gun salutes.
But the 53-year-old tradition could come to an abrupt halt if large numbers of soldiers are killed by chemical or biological agents, according to a proposal quietly circulating through Pentagon corridors.
Army spokesmen said the option to bury or even burn bodies contaminated by chemical or biological weapons is being considered, along with the possibility of placing contaminated corpses in airtight body bags and sending them home for closed-casket funerals.
* * *
The U.S. had a plan for mass burials during the Gulf War in 1991, said Lt. Gen. William "Gus" Pagonis, the chief logistician for that conflict and the man who conceived the plan.
"The bulldozers were all lined up and ready to go," to deposit contaminated bodies in "mass graves," Pagonis said.
"You'll use whatever equipment is necessary to avoid contaminating more people," Pagonis said in a recent interview. "You don't want anybody else to die."
* * *
Army spokesman Capt. Ben Kuykendall said the Pagonis plan is similar to the option currently under consideration - except that bodies infected by biological agents might be both cremated and buried.
If soldiers are killed by "something like smallpox in which bodies cannot be decontaminated, we would have to cremate them right there," Kuykendall said. He said he recently discussed the option in detail with Brig. Gen. Steve Reeves, program executive officer for the Army's chemical and biological defense office. Reeves declined to comment.
"You would have to protect the living, so you'd have to get rid of the (contaminated) bodies as quickly as possible," Kuykendall said. "You don't want to contaminate any survivors who are not already contaminated."
* * *
Military veterans said they hope those commanders will never have to make such a choice.
Mass burial is "a sensitive issue, and we don't want to think about it because our hopes and prayers are that it won't happen," said Tom Corey, president of the Vietnam Veterans of America who was wounded in Vietnam and now uses a wheelchair.
AP Report: Schools buying terrorism insurance-- A questionable use of scarce school resources to combat terrorism
The Associated Press national desk ran a story this morning that local school districts around the country are buying terrorism insurance. Personally, I think this is a less-than-bright idea. When it comes to our nation's schools, I want my resources directed at prevention and consequence-management -- not at insuring the buildings and real property which can always be rebuilt with public money after the event. Of all the ways to allocate scarce resources in the fight against terrorism insurance, this is one of the dumbest. It transfers scarce millions of dollars from cash-strapped school districst to private insurance companies, and takes away from resources which might otherwise be directed at preventing terrorism or stockpiling supplies in case an event happens. The insurance doesn't pay for those supplies, nor does it buy trained personnel who can respond to an event. It just compensates the victims after the fact, and repurchases lost goods. After an attack, the government will do that anyway, or at least loan the district money through FEMA at a below-market rate.
Many school districts are pricing policies and debating whether they need coverage, even though terrorism experts say there has never been an attack on a U.S. school by foreign terrorists.
New York City, the nation's largest district, and Chicago, the nation's third largest, have rejected the coverage because they're self-insured and say it would be too costly.
Two other large districts — the Miami area's Dade County, and Clark County, in and around Las Vegas — figured they needed the insurance and bought it before the law was passed.
* * *
Besides cost considerations, school districts are making decisions based on factors such as proximity to urban areas, how tall and close buildings are and how well they can secure their schools, according to Jim Sandner, president of Chicago-based Brokers' Risk Placement Service, which provides insurance to more than 1,000 districts nationwide.
Terrorism experts say it's unclear what foreign threats — if any — the nation's schools face.
* * *
With states facing budget crunches, price may be the deciding factor in determining whether to get the insurance. School districts contacted by The Associated Press said they've faced hikes from 5 to 20 percent of their current insurance premiums to add terrorism coverage.
In general, public finances at the local schools level is a zero-sum game. School districts have a finite amount of resources -- resources which are especially limited in fiscally austere times like our current recession. (California's schools can't afford a lot of things these days, including salary increases already promised to teachers and capital improvements on decaying schools) Terrorism may pose a threat to schools or it may not. But if it does pose a threat to schools, then schools have to allocate money to this threat in the most efficient way possible.
Priority #1 ought to be PREVENTION, not insurance. It might be wise for schools to invest in more school police to look for suspicious things, or to react to increased threat warnings with extra patrols. (School districts could also develop agreements with local police departments to contract for security services in high-threat times) After prevention, priority #2 ought to be CONSEQUENCE MANAGEMENT. This includes all the activities which can save lives after an attack. When schools are concerned, saving lives through prevention and consequence-management are more important than anything. Terrorism insurance may sound good to policy makers and parents, but it won't do a thing to save their children if a terrorist attacks. Buying preventive law enforcement and consequence-management supplies will save lives. That's where the money ought to go.
Thursday, January 23, 2003
After receiving some constructive criticism, I've decided to name my 'blog "Intel Dump".
Intel dump is a perjorative military term that refers to an impromptu or scheduled situation briefing. In the 1st Brigade, 4th Infantry Division, our intelligence officer used to stand up and give an "Intel Dump" of the day's battlefield activities at regular intervals. Her brief covered the enemy situation, the friendly situation, and other major events that affected our mission. These intel dumps gave me the information I needed to go out and do my mission (or gave me the questions I needed to ask.) The term entered my vocabulary, and I now use it to refer to any sort of comprehensive briefing or rundown of events. It seemed appropriate for my weblog, where I try to provide thoughtful analysis of various legal, military and security issues. (And more importantly, it wasn't taken yet!)
History Lesson: America has never truly favored military conscription; it's only chosen it out of necessity
Slate has a great essay today by historian David Greenberg on America's love/hate relationship with the draft. The story caught my eye because it contradicts a popular American myth: that we universally embraced mandatory military service until Vietnam and the advent of the all-volunteer force. Greenberg writes that this is far from the case. Indeed, conscription has been the exception in US history, not the rule, only implemented in times of national emergency (Civil War, WWI, WWII), and continued for the mid-20th Century more out of inertia than anything else. Ultimately, Greenberg argues that this history makes Congressman Rangel's draft proposal all the more unviable.
Despite these fine words, though, conscription has always been—and probably will always be—a tough sell. The reason isn't that Americans crave an unjust system, although they haven't shown too much regret over the draft's inequities. Rather, the draft's perennial unpopularity stems from an abiding national regard for freedom from state coercion. For all Rangel's rhetorical bows to the "citizen soldier" and "shared sacrifice," his proposal addresses America's historic concern for equality but skirts its even more primary veneration for liberty.
Indeed, the notion of the citizen soldier of the Revolutionary War to which Rangel hearkens—the common man trading plowshare for sword to fight an imminent threat—actually points up the flaws in the argument for conscription. The Revolution's vaunted Minute Men were, after all, volunteers who needed no official prodding to take up arms against a threat to their liberty. The Continental Army certainly had its manpower problems—in the winter of 1776, Tom Paine decried the "summer soldier and the sunshine patriot"—but even in those trying times, states rejected George Washington's plea for national conscription. When individual states did hold drafts, they allowed wealthy conscripts to hire substitutes, who were predominantly poor and unemployed. Service was hardly a shared experience."
Whatever problems hobbled the Continental Army, the new nation's founders remained convinced that state encroachment on personal freedom was the greater danger. The Constitution's drafters conferred on Congress the power to "raise and support armies" but not to conscript citizens—an omission notably at odds with the practice in Europe. Virginia's Edmund Randolph, one of the few founders to raise the issue during the constitutional debates, argued that a draft would "stretch the strings of government too violently to be adopted." Such sentiments carried the day even when British troops invaded American soil two decades later. During the War of 1812, President James Madison sought a draft. But even though Secretary of War James Monroe promised it would be just a temporary, emergency measure, Congress opposed it, in Sen. Daniel Webster's words, as "Napoleonic despotism." It never got off the ground.
See the full article for more about the history of American military conscription. It's one of the better pieces I've read on the subject.
Wednesday, January 22, 2003
Farewell to a great American citizen
Bill Mauldin, Pulitzer Prize-Winning Cartoonist, Dies at 81
By Mike Anton, Los Angeles Times Staff Writer
Bill Mauldin, the Pulitzer Prize-winning cartoonist whose characters--two downtrodden GIs, Willie and Joe--spoke to a generation of soldiers who fought in World War II, died early today. He was 81.
Mauldin died at a nursing home in Newport Beach where he had lived since mid-2001 while battling Alzheimer's disease. More recently, he had contracted pneumonia. The cause of death was respiratory failure.
A self-described "hillbilly from New Mexico," Mauldin rose from small-town obscurity to cult hero as a baby-faced Army sergeant working for the armed forces newspaper Stars & Stripes in Europe.
His darkly funny and irreverent cartoons captured the mood of a changing military made up of citizen soldiers who questioned the leadership skills of their own officers even as they battled the enemy. Mauldin went on to become one of the best-known and best-loved newspaper columnists in America.
Mauldin's Willie and Joe, infantrymen who survived on a diet of ironic humor, were dirty and unshaven, slogging through mud and snow and sleeping in foxholes filled with water. They dodged the enemy's bullets as well as the poor morale brought on by incompetent officers.
* * *
Mauldin's characters offered a counterpoint to the clean-cut, gung-ho fighting man put forth by the Army publicity machine. There was no gauzy sentimentality in Willie and Joe, no chest-thumping heroics. They were just doing their job and wanted nothing more than to finish it and go home. It was an apt description of America's new military-a civilian force of millions, many of whom bucked the system while marching on Germany and Japan.
* * *
To millions of veterans, Mauldin was simply one of them--a soldier who fought World War II with a pen instead of a rifle.
"Peanuts" creator Charles Schulz would often have Snoopy announce on Veterans Day that he was going to Mauldin's house for root beers. Schulz always sent Mauldin the originals, although Mauldin was puzzled why. Finally, the two met. "I was a machine-gunner in France during World War II," Schulz explained. It was all he had to say.
NYT: U.S. Is Deploying a Monitor System for Germ Attacks
Judith Miller (author of the book Germs) reports on the front page of today's NY Times that the federal government plans to adapt thousands of EPA monitoring stations across the United States to detect the presence of biological agents. This is very encouraging news. It represents an effort to predict the enemy's future threat and deny that avenue of approach through pro-active initiatives. By fielding a system of biological detectors, we have lowered the catastrophic calculus of a biological attack using airborne pathogens. This, in turn, lowers the probability of a terrorist using this terrible means of attack.
Some caution is in order, however. This system is not perfect -- far from it. It has four main flaws:
1) It is not geographically comprehensive; 3,000 detectors is not enough to cover the United States entirely.
2) The system only detects airborne pathogens in its immediate area, or in other words, what's circulating in the air. It cannot detect latent amounts of biotoxins in places like mail envelopes, offices, or other enclosed spaces. The system would pick up something like a crop-dusting plane spraying anthrax on Manhattan, but it might miss the recent anthrax attacks altogether.
3) As reported, the system will not detect releases of chemical agents into the air -- only biological agents. This means an attack with Sarin (non-persistent nerve agent), like in the Tokyo subway system in 1995, would go undetected. Similarly, the system is limited to airborne pathogens, which excludes the range of chemical and biological agents which can be released through other mediums like liquid or gelatin.
4) The system has a 12-24 hour lag time between pathogen sample and confirmation by the CDC that the samples are indeed contaminated. The system does not detect and analyze samples in real-time, such that it could pinpoint an anthrax attack on New York or L.A. within minutes. In that sense, this system must be understood as less of a counter-terrorism tool than a consequences-management tool. This will not enable authorities to quickly ID and respond to an attack. But it will help dramatically with cordoning areas after an attack, directing medical resources, and taking care of the wounded.
* * *
Officials said that although the system would not by itself protect Americans against a germ attack, early detection of such a strike would give the government more time to mobilize medical resources that could save thousands, and even hundreds of thousands of lives. The faster those exposed to most deadly pathogens are vaccinated against a disease, or treated with antibiotics to combat it, the lower the death rate.
Under the system, the E.P.A. monitoring stations will send samples of a tissue-like paper from newly upgraded machines that filter air to the closest of some 120 laboratories across the country associated with the federal Centers for Disease Control and Prevention. Results will be available within 24 hours, and possibly within 12 hours.
Although officials declined to say which or how many E.P.A. monitoring stations would ultimately be used, experts on the government's program said the first environmental monitoring stations in the new system, called Bio-Watch, were in New York. The city has more than seven such stations. The stations, which are all outdoors, now mainly monitor for air pollution.
* * *
Officials said today the introduction of the system by the newly created Department of Homeland Security was not linked to a specific terrorist threat. The intelligence community, one senior official noted, has "no credible evidence that Al Qaeda has acquired biological weapons, or any weapon of mass destruction at this time."
* * *
While environmental monitoring does not provide instant detection of the release of a dangerous germ, the new system is aimed at giving health officials more time to send doctors, vaccines, antibiotics and medical equipment to the scene of a bioterror attack. Doctors and terrorism experts have long said that the lack of such a system is one of the most glaring deficiencies in the nation's biodefenses.
Bottom Line: This is a major step forward for the United States in the fight against terrorism. Adopting a system like this has an enormous deterrent effect on future acts of terrorism, because it makes it less likely for those attacks to achieve spectacular success. We must look for more systems like this which will deny avenues-of-approach to our enemies, including perhaps a system which can detect chemical, biological and nuclear material as it moves into our ports or on our rails.
Tuesday, January 21, 2003
The Soldier's Place in Society
America's finest sons and daughters are deploying for war as anti-war protesters lead rallies in various U.S. cities for their cause. Can the two be reconciled? Yes, they can. America's military is the only military organization in the world which swears its oaths to a legal idea -- the Constitution. Most nations swear their allegiance to the sovereign or to the nation. But every American soldier raises his/her right hand and swears to support and defend the Constitution against all enemies foreign and domestic. That makes the American military unique. Its soldiers fight for the rights of protesters who would not themselves go into harm's way. It's a very powerful idea, and one we ought to remind ourselves of often.
Two generations ago, an eloquent military chaplain penned the following prayer.
"It is the soldier, not the reporter,
who has given us freedom of the press.
It is the soldier, not the poet,
who has given us freedom of speech.
It is the soldier, not the campus organizer,
who has given us the freedom to demonstrate.
It is the soldier,
who salutes the flag,
who serves beneath the flag,
whose coffin is draped by the flag, and
who allows the protester to burn the flag."
--Father Denis Edward O'Brien, USMC
[A Guadalcanal Veteran of WWII, 11th Marines, and the Chaplain for the 1st Marine Division Association]
Monday, January 20, 2003
4th Infantry Division heads to Persian Gulf
The Pentagon announced on Monday that it was sending Task Force Ironhorse, a composite force built around the Army's 4th Infantry Division, to the Persian Gulf. I served in 4ID for nearly three years, mostly as a Military Police platoon leader in the Army's experimental digitized force. This division is nothing short of awesome -- it is qualitatively and quantitatively more lethal and powerful than any other division in the Army. The core of 4ID's strength is its digitization. Nearly every vehicle -- tanks, Bradleys, tracked artillery pieces, Humvees -- has a system called "Force XXI Battle Command for Brigade and Below" installed inside. This is like a laptop system which is wired to a GPS and FM radio. Every one is connected via a secure FM "tactical internet". Everyone has the real-time ability to see themselves, see the enemy, and see the terrain. It's an awesome capability. At the higher levels of command, this capability enables senior commanders to see through the fog of war and make decisions about what's actually happening in real-time.
The Army hasn't sent 4ID anywhere in a long time, because it's been testing equipment for the Army and developing new ways of fighting. This movement is significant. It means that America means business in a big way. We don't send our elite fighting forces, particularly when they're heavy/mechnized like 4ID, unless we intend to fight. 4ID is so advanced that it can execute the combat operations of 3 Army divisions from the Gulf War. This is a major commitment of combat power.
I'm somewhat sentimental about this deployment, since many of the soldiers I led and trained still serve in the 4th Infantry Division. These are America's finest sons and daughters; every single one is a great American citizen. I am confident they will serve with distinction in the Gulf, and will hold them in my thoughts until they return.
Friday, January 17, 2003
SCOTUS Blog - Best analysis I've seen yet of the briefs filed thus far in Grutter/Gratz v. Bollinger, the U.Mich. affirmative action case.
Thursday, January 16, 2003
Diversity as a compelling interest -- but what kind of diversity?
President Bush decided yesterday to file an amicus brief with the Supreme Court in the pair of cases known as Grutter v. Bollinger. Those cases emerge from challenges to the University of Michigan's system of race-based preferences in admission for undergraduates and law students. Legally, these cases raise two questions: 1) whether diversity can be a compelling government interest for the use of race-basd preferences, and 2) whether such preferences (as used by the University of Michigan) are properly tailored to reach that compelling interest. If there's no compelling interest, the Cour must strike down the preference; if the policies aren't written narrowly enough, the Court must strike them down.
Racial diversity has been put forward by many liberals and conservatives as an unassailable goal. University administrators and faculty like to argue that racial diversity leads magically to intellectual diversity, and that it creates a vibrant marketplace of ideas in the university. Learning and personal growth expand exponentially in such a diverse environment, this argument goes, because the multiplicity of viewpoints adds more perspectives to any particular debate, thus enriching the debate and the learning experience.
However, my experience at UCLA (as an undergraduate and law student) has not borne that out. If anything, this university cares much more about racial diversity than intellectual diversity – far more. When it comes to presenting balanced perspectives on any particular issue, from foreign policy to local land-use regulation, I have found UCLA to be quite lacking. Of course, this carries great benefits for me as a conservative, since it allows me to test my opinions and arguments in hostile territory. But it does many – including liberals – a disservice by creating a relatively homogenous environment when it comes to intellectual diversity.
If diversity is really what administrators at U.Michigan, UCLA and elsewhere care about, then they ought to consider exactly what it is about diversity that they want to bring into the classroom. If it's intellectual diversity, then race makes a poor proxy. Saying a black man has one perspective because of his race is specious -- it also cuts both ways. You can use that argument for positive and negative inferences about his character and perspective. The principle remains the same -- the use of race as proxy employs dangerous stereotypes and boils us all down to the quotient of our skin color.
If intellectual diversity is something truly prized at Michigan, then the facts of Grutter v. Bollinger make a very compelling argument for Barbara Grutter's admission:
"As Barbara Grutter sees it, she embodies the kind of diversity that most law schools want.
"The 49-year-old mother of two had worked in the health-care information technology field and operated her own consulting business for 16 years. She had lived around the country as well as in Canada. On top of that, she boasted a 3.8 undergraduate grade-point average and law school admission test scores in the 86th percentile.
"In Grutter's opinion, there was only one flaw on her application to the University of Michigan Law School: She is white."
-- Chicago Tribune
But that's the point. Michigan, like many other schools, does not really care about intellectual diversity. They only parrot that argument before the Court because they know the court won't buy their purely racial argument. Without a clear nexus to the classroom and pedagogical purposes, affirmative action falls flat. Thus the need to link racial diversity to intellectual diversity -- at tenuous connection at best. University admissions officials ought to develop admissions systems that actually look for intellectual diversity if that's what they're truly after. In the absence of such initiatives, I find it highly questionable that university administrators actually care about intellectual diversity. It seems that university leaders only care what their student body looks like -- but that this diversity goes skin deep.
Citizen soldiers report long tours, little support:
The continuing decline in post-9/11 support for the military in America
The USA Today front page contains a very good story today on American military reservists and the challenges they have faced in this new war on terrorism. Among other things, reservists have been called up for longer tours than anytime since Korea, sometimes exceeding a year; they have conducted missions from mundane gate security in the U.S. to actual combat in Afghanistan. In doing so, they have ably answered their nation's call to service. However, reservists have not received much support at home -- from the Pentagon, from their employers, and from American society. The U.S. military does not resource reserve units to anything near its active-duty standard. Some reserve units have radios and equipment that are 40 years old. Employers also support reservists -- but only as far as they have to. Though federal law protects mobilized reservists, it only sets a minimum level for that support -- a low level. Many reservists still take a massive pay cut, sometimes lose their health benefits, and face all sorts of other economic challenges because they've chosen to do something that too few Americans do anymore.
That all might be okay if American society still supported reserves and everything associated with the military. Unfortunately, they don't. I live in Santa Monica, one of the most wealthy and liberal communities in America. I live among a part of society that benefits tremendously from America's security and stability; these people could not live their lifestyles without American military sacrifice. Yet, most wouldn't lift a finger for a soldier if they had the opportunity. All the flags from 9/11 have come down. The NYPD and FDNY shirts have gone away. When I put on my uniform for reserve duty, I see the difference. It used to be that I could not buy a cup of coffee anywhere -- not Peets, not Starbucks, nowhere. Now, I don't even get the same policeman's discount (which I usually put back in the tip jar).
Their lives today revolve around the near certainty he will return to combat somewhere within the next year. With America at war with terrorism and possibly at war with Iraq in the weeks ahead, the nation relies increasingly on citizen soldiers such as Denis McCarthy, who are members of either the National Guard or the Reserves.
Before Sept. 11, they were much more civilian than soldier. About 130,000 have been called up since the attacks in New York and Washington, D.C., and that includes 58,894 who remain on active duty today. An additional 100,000 could be mobilized for a war with Iraq. A relatively small number are in true combat, although all are at varying risk of terrorist attack.
As a ready source of manpower, Guard and Reserve men and women are a bargain. They number more than 1.2 million and allow the nation to nearly double its armed forces if necessary while accounting for just 8.3% of the defense budget.
Last December, in remarks to American troops stationed in Qatar, Defense Secretary Donald Rumsfeld said that "the Guard and the Reserve is so enormously important to this country because it does enable us to have a total force concept."
But unlike their active-duty counterparts, these citizen soldiers who are being called up increasingly find themselves between two worlds.
They work and even fight in a military that is taking casualties in places such as Afghanistan, dealing with all the wartime trappings of separation and sorrow. But their spouses and children, who were never part of a self-supporting military culture the way most active-service families are, remain in a civilian world where neighbors and friends have long since put away the flags they flew after 9/11 and are going about their daily lives.
* * *
"You have people who are willing to give whatever their country asks ... while also trying to live the American dream," says Jay Farrar, a military analyst with the Center for Strategic and International Studies in Washington and a former Marine Corps officer and Department of Defense official.
"They're the ones in the middle," he says. "And most other Americans don't have a clue."
Tuesday, January 14, 2003
Washington Post: U.S. Acts to Thwart Missile Threat Against Airliners
On Dec. 1, 2002, I wrote the following in response to an alleged Al Qaeda attempt to shoot down an Israeli passenger jet in Kenya with handheld surface-to-air missiles:
...the general idea of anti-terrorism is that you have to adjust your counter-measures to the threat. As the threat appears in one area, you have to shift resources to that area. If I were a decisionmaker, I'd be shifting TSA employees from screening baggage to conducting sweeps of airport tarmacs in response to this threat. If this new threat (SAM attacks) is real, then it makes little sense to continue to fight the old threat (hijacking).
...The U.S. has successfully responded (albeit too late) to the threat of hijacking and we have hardened our airports to the point where no terrorist can effectively hit them. Given our national experience on Sept. 11, it is unlikely that a terrorist could ever hijack a plane again. But this does not mean that our aircraft are safe -- it only means that certain avenues of attack have been denied to our enemies. We must continue to refine our intelligence about our enemy and dynamically employ new counter-measures as we see our enemy developing new means of attack.
Wednesday's Washington Post leads with a story that the U.S. government has listened. The Post reports that the U.S. government has rapidly instituted a comprehensive review of airport and airline security in response to this emerging threat.
Top federal officials, increasingly concerned that terrorists will attack U.S. commercial aircraft with shoulder-fired missiles, are developing plans to thwart such strikes with measures that range from sophisticated anti-missile technology to simple changes in takeoff schedules.
An interagency task force that reports to the National Security Council is also coordinating emergency inspections of every large U.S. airport to determine their vulnerability to the small, portable missiles, senior government officials said. And the task force is planning a public education campaign designed to teach police departments and citizens who live and work near airports to identify the missiles if they see them being assembled.
While acknowledging their alarm at the danger posed by portable missiles that may be fired at the approximately 6,700 commercial aircraft operating in the United States, administration officials stressed yesterday that the highest echelons of the U.S. government are focused on the threat and are determined to maximize the traveling public's safety.
* * *
The attack confirmed the belief of U.S. intelligence experts that al Qaeda has access to a supply of the weapons and may now be uncrating them as a new terrorist tactic. The interagency task force stepped up its meetings just days after the failed shoot-down of the Israeli jetliner.
* * *
The interagency task force -- led by the Transportation Security Administration (TSA) and including representatives of the Pentagon, the FBI and the State Department -- held two days of meetings on the missiles in December. Last week, the group sent a preliminary report, weighing various government actions, to a top-level panel convened by the White House's NSC.
"The key finding is there is no single answer to this threat, no silver bullet," one ranking government official said. "We'll have to consider a number of things to reduce this threat, in a multilayered approach."
Bottom Line: This is outstanding work by the federal government in response to a dynamic, evolving, innovative threat. Now, the federal government must take this to the next level. The TSA must radically alter its strategic posture to focus on this new threat, instead of fighting the old one (hijacking). If that means taking baggage screeners and putting them out on the flight line, then that's what it means. Intelligence drives operations!!! We must adopt counter-measures that respond to today's threat and tomorrow's threat, not the threat of yesterday.
NYT: Tamil Tigers of Sri Lanka were the real pioneers of suicide bombing and 4th Generation Warfare
Today's NY Times contains a front-page article on the Tamil Tigers, a violent terrorist group in Sri Lanka seeking independence. The article confirms what many terrorism experts have said for some time: terrorism can be institutionalized, and when it is, it can become much more deadly. The Tigers have created a institutional system for training, doctrine, equipment and personnel-selection relating to the use of suicide bombing for terrorism. Here's an excerpt:
The Tigers did not invent the suicide attack, but they proved the tactic to be so unnerving and effective for a vastly outmanned fighting force that their methods were studied and copied, notably in the Middle East.
"Of all the suicide-capable terrorist groups we have studied, they are the most ruthless, the most disciplined," said Rohan Gunaratna, a research fellow at the Center for the Study of Terrorism and Political Violence at the University of St. Andrews in Scotland. He said the group was responsible for more than half of the suicide attacks carried out worldwide.
* * *
The Tigers evolved ever more sophisticated suicide bodysuits, and more refined surveillance. They skillfully insinuated themselves within striking distance of their targets. They professionalized, and institutionalized, suicide bombing.
Monday, January 13, 2003
Pentagon slams Rangel's draft idea; DoD official presents case for all-volunteer force
I just read through the briefing transcript from a "senior Defense official" on the all-volunteer force, and what it would mean if Congress adopted Rep. Charlie Rangel's ill-considered idea for a military draft. In the Pentagon, the moniker "senior Defense official" is often used for a high-ranking policy official who's a career public servant and does not want to have his/her name in the press. It usually means this information is pretty accurate, because it's coming from an expert instead of a political appointee. And in this case, I highly recommend this particular SDO's comments.
Here's an excerpt:
Q: I think he may -- I think if Charlie Rangel were sitting here -- and not to take his side, but to play devil's advocate, is in some ways your numbers are kind of proving his point that the very elite class in this country -- and again, pick your number on that, $75,000, $60,000 and up, $75,000 and up, and even higher -- are not who is sending people into enlisted ranks, combat troops, not going to get --
Senior Defense Officer: Well, let me remind everyone that combat and enlistment are two different statements.
Q: Of course.
Senior Defense Officer: The United States Air Force, the United States Navy, if it is largely going to be an air operation, it will be principally officers whose lives are at risk. Further, I think we have to, in an age of terrorism, rethink what we mean about combat exposure.
Let's take the September 11th attack on the Pentagon. More civilians died than military. In one service it was more women civilians died than military.
So this whole issue of who is exposed to risk, I'm struck in this debate -- Mr. Rangel and others who are raising this question are a bit of an echo out of the past. It's not really a description of current situations and current risks and who is bearing the burden. And I would argue that if -- once we look at the officers, you're going to see a different pattern than the critics are raising. Now, I don't have the officer numbers here this morning; I apologize for that point. But it's going to look a little different once you include the officer class in this.
Q: Rangel's basic point is that the powerful elite who make campaign contributions and who make decisions about war and peace don't have children that are represented in the military, by and large. And you don't have anything that sort of --
Senior Defense Officer: I don't think -- well, now we get down to sort -- almost the idiosyncratic level of debate, you know, who are the power elite? You know, if you look at the classes at our military academies -- West Point, Annapolis, Colorado Springs -- many people would argue you're looking at a future power elite there. And these are young men and young women who are quite willing to put their lives on the line, and do so, as you can see from the inscriptions on the various memorials at those institutions.
So there is no lack of willingness on the part of Americans from more privileged backgrounds -- to deal directly with Mr. Rangel's question -- to serve. And we see that also in the Reserves. I would urge each of you, you know, if you want -- no one has really done all this research in the comprehensive way that I think we'd all like to see, but I'd urge you to take the biographies of the flag officers in our Reserve and Guard establishment, and on any metric you like in terms of socioeconomic status, look at whether or not you think they qualify as being in the power elite. These are people who are often successful businessmen, businesswomen now increasingly, successful figures in their community; includes doctors who have joined Reserve units, are willing to serve; have been sent forward in some cases, mobilized a number of these people and sent them to Southwest Asia, are quite willing to expose themselves to the risks that I think Mr. Rangel is concerned.
Sunday, January 12, 2003
NYT: Officials Reveal Threat to Troops Deploying to Gulf
Thom Shanker reports in Monday's NY Times that the U.S. government has learned of "credible threats" to U.S. forces as they deploy to the Persian Gulf. The phrase "credible threat" is a term of art -- it means intelligence that comes from trusted sources with enough information (time, place, type of attack) to make it something that can be acted on. These threats should come as no surprise. Anti-terrorism planners have seen U.S.-based deployment infrastructure (airports, seaports, planes, ships, trains) as a critical vulnerability in any major war that would require the U.S. to deploy its forces overseas. When you add our prospective adversary, Iraq, it only makes sense that we would start to detect threats against this infrastructure. Iraq and Al Qaeda play on the same team, and any terrorist actions against our deployment infrastructure would help Iraq by delaying the American buildup.
Within the past three weeks, American intelligence gathered what officials described as credible evidence of a planned bombing of a passenger airliner contracted to fly troops and freight for the military.
To counter what senior commanders call the growing threat of attack on those mobilizing for a possible war with Iraq, the American military has begun for the first time to share classified intelligence warnings directly and quickly with commercial transportation companies ferrying United States forces toward the Middle East from here and abroad, the senior officials said.
Military officials removed from the report details that might have revealed the source of the warning or the methods by which it was gathered. Then, rather than risk any delays from working through domestic law enforcement authorities or federal transportation safety agencies, the military gave the secret threat assessment directly to the private airline company.
Security officials at the company took pre-emptive steps, including changing the date and time of the flight and the route it followed.
This is exactly the right answer, and both the U.S. military and the private carriers ought to be commended for their actions. This is a textbook case of gathering information, analyzing it to produce intelligence, and acting on it in time to stop a terrorist attack.