News analysis and commentary from Phillip Carter -- now located at

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Friday, February 28, 2003
Weekend Break: I've got reserve duty this weekend, which means less time online and less time to update Intel Dump. If any major stories break, I'll add my notes in the evening when I get home from my unit.

Headline blooper: Iraq appears more flexible than the 9th Circuit

Apparently, no one at the Los Angeles Times' website is paying attention to the juxtaposition of their headlines. Or if they are, they're trying to send a very pointed message to the judges of the U.S. Court of Appeals for the 9th Circuit: loosen up. See for yourself.

Court Won't Bend on Pledge Ruling
UPDATE: Appeals court refuses to reconsider ruling that "under God" reference is illegal.

Iraq Bends a Bit on Missiles
Baghdad agrees "in principle" to destroy its proscribed missiles.

Who knew that the despotic regime of Saddam Hussein was more willing to bend than the judges of the 9th Circuit?

Update: Pentagon releases its "Crimes and Elements" for military tribunals

The Defense Department released a draft version today of the "Crimes and Elements for Trials by Military Commission," as reported in today's Wall Street Journal by Jess Bravin. The document was drawn up by Pentagon lawyers based on legal principles in international law, federal law, and military law. It is essentially a model penal code for the conduct of warfare according to the United States. Bravin and others have speculated that this list of crimes will be used to try both members of Al Qaeda and members of the Iraqi government.

Thursday, February 27, 2003
WSJ: White House to announce list of 'war crimes' for military tribunals

Legal correspondent Jess Bravin reports in Friday's Wall Street Journal (subscription required) that the White House has approved a list of crimes for possible use by military tribunals in the future. President Bush signed an order in November 2001 which established the military tribunals, and the Defense Department followed that announcement with a series of procedural regulations. These trials were originally intended for members of Al Qaeda, such as Osama Bin Laden and Ayman Zawahiri, in the event they were captured during the war in Afghanistan. To date, no one has been brought before a tribunal. However, some have speculated that alleged "20th hijacker" Zacarias Moussaoui might be moved to a military tribunal in the near future, given evidentiary and procedural problems in his case. Regardless, this development represents a major step towards the eventual establishment of tribunals, and is another indicator that the Bush Administration does intend to use this legal tool at some time.

The "crimes and elements" rules, which could be announced as early as Friday, aren't expected to allow prosecutions based solely on membership in the al Qaeda terrorist organization. The issue had divided administration officials, some of whom were concerned they might lack proof of specific crimes by some prisoners.

The rules are expected to grant the tribunals jurisdiction over war crimes, but not broader categories such as genocide and crimes against humanity which can occur outside of an armed conflict.
* * *
The rules are expected to allow prosecution for "unlawful combatancy" -- that is, fighting against U.S. forces. President Bush has declared all al Qaeda fighters unlawful combatants. While uniformed soldiers of an enemy nation's army cannot be prosecuted for waging war, Washington contends that members of a terrorist organization such as al Qaeda have no right to take up arms.
* * *
The first trials, which are likely to take place at the Guantanamo Bay Naval Base, may involve lower-level prisoners accused of unlawful combatancy rather than al Qaeda commanders accused of such war crimes as targeting civilians, taking hostages or using prohibited weapons such as poison gas.

Officials want to ensure the system is working well before turning to better-known defendants. Those could include Mr. Moussaoui, should President Bush decide that continuing his civilian trial in Alexandria, Va., poses too many national-security risks.

Moreover, Washington is weighing how to deal with leaders of the Iraqi regime should they be captured in a forthcoming conflict. The al Qaeda tribunals could be a model for war-crimes prosecutions of Iraqis.

Analysis: This final paragraph is something I've been speculating about for some time. In theory, there are several options for trying Iraqi officials after the war:
1) International Criminal Court (unlikely, given the US opposition to this institution)
2) International Criminal Tribunal - Iraq (Similar to the ICT-Yugoslavia, this would be an ad hoc court set up for this conflict)
3) U.S. federal criminal court (unlikely, given the Moussaoui problems)
4) U.S. military court (legally possible, under both the laws of war and the Uniform Code of Military Justice, but not probable)
5) U.S. military tribunal (legally possible if the President amends his original 13 Nov 01 order)

There is nothing stopping President Bush from modifying his 13 Nov 01 order to allow for the use of military tribunals for Iraqi war criminals. The original order was written with Al Qaeda in mind, and the Iraqis would not be subject to this order as written. But the President could sign a second order which broaded the jurisdiction of these tribunals to include Iraq. Ironically, such an order would enjoy better legal support than the current tribunal order. Most of the recent tribunal cases (including Application of Yamashita and Ex Parte Quirin) came out of World War II, and the need to try Japanese and German war criminals after that conflict. The situation in Iraq is far more analogous to those cases than that of global terrorism. Thus, I think the President would have very strong legal precedent behind him if he pursued this course of action.

Moreover, using military tribunals seems appropriate for the trial of war criminals. It's what we did at Nuremberg, and it's seems normatively appropriate for this type of proceeding. I would not be opposed to using military courts for this purpose, but I think that military tribunals may give the U.S. more flexibility in charging offenses and dealing with evidence for which there is no provision in the current Uniform Code of Military Justice. Prediction: we will see military tribunals implemented within a year, both for for Al Qaeda terrorists like Ramzi bin-al-Shibh and for Iraqi war criminals like their general staff and possibly Saddam Hussein (if he's captured alive).

Pentagon: General Shinseki's estimates for post-war occupation were "wildly off the mark"

In an earlier note, I predicted that the Pentagon would begin to retract statements made by Gen. Eric Shinseki which estimated that "several hundred thousand" soldiers would be necessary to occupy and rebuild Iraq. Gen. Shinseki, the Chief of Staff of the Army, made these comments on Tuesday before the Senate Armed Services Committee during a hearing on the FY2004 National Defense Authorization Act (the budget). Here's the exact comment as reported by the New York Times on Wednesday:

In response to questioning by Sen. Carl Levin (news, bio, voting record) of Michigan, the senior Democrat on the committee, Shinseki said he couldn't give specific numbers of the size of an occupation force but would rely on the recommendations of commanders in the region.

"How about a range?" said Levin.

"I would say that what's been mobilized to this point, something on the order of several hundred thousand soldiers," the general said. "Assistance from friends and allies would be helpful."

The Pentagon held a press conference on Wednesday to clarify the official U.S. position on this issue. I thought this was all the backpedaling we would see. But apparently, that wasn't nearly enough. In Friday's New York Times, Eric Schmitt reports that Deputy Defense Secretary Paul Wolfowitz has directly contradicted Gen. Shinseki's estimate.

Mr. Wolfowitz, the deputy defense secretary, opened a two-front war of words on Capitol Hill, calling the recent estimate by Gen. Eric K. Shinseki of the Army that several hundred thousand troops would be needed in postwar Iraq, "wildly off the mark." Pentagon officials have put the figure closer to 100,000 troops.

Mr. Wolfowitz then dismissed articles in several newspapers this week asserting that Pentagon budget specialists put the cost of war and reconstruction at $60 billion to $95 billion in this fiscal year. He said it was impossible to predict accurately a war's duration, its destruction and the extent of rebuilding afterward.

"We have no idea what we will need until we get there on the ground," Mr. Wolfowitz said at a hearing of the House Budget Committee. "Every time we get a briefing on the war plan, it immediately goes down six different branches to see what the scenarios look like. If we costed each and every one, the costs would range from $10 billion to $100 billion."

Analysis: Normally, this would be a major breach of protocol and a very embarassing schism within the Pentagon. However, it's not the first time that the Office of the Secretary of Defense has come in conflict with the Army or with Gen. Shinseki personally. OSD and the Army have differed recently on the cancellation of the Crusader artillery system, purchase of the Stryker armored vehicle, deployment of artillery to Afghanistan, and various other things. Secretary Rumsfeld went so far as to appoint Gen. Shinseki's replacement a full 12 months before his retirement, in what I think is a clear show of disapproval. Clearly, there is bad blood between OSD and the Army.

This is compounded by the fact that the Army does not have an operational role in war, per the Goldwater-Nichols Act of 1986. The services (Army, Navy, Air Force and Marines) are responsible for training, equipping, recruiting and maintaining the force. But the "Unified Combatant Commands" do the actual fighting. Gen. Shinseki may be the top uniformed official in the Army, but he plays little to no operational role in the war planning for Iraq. This became a major issue during the Kosovo war, when then-NATO Commander Wesley Clark wanted the Army to provide Apache helicopters immediately for attack missions against Serb troops. The Army fought him every step on the way, using every manner of administrative subterfuge. (See Wesley Clark, Waging Modern War) The result has been to further remove the services from the business of warfighting, and to give more power to generals like Tommy Franks at Central Command.

AP: Terror alert dropped to yellow
End of Muslim hajj cited as the reason for the decrease in threat

The AP reports this morning that the Bush Administration has lowered the national terror alert level from orange to yellow (from Ernie to Bert, in Sesame Street language, as one law enforcement friend describes it). Earlier in the week, Attorney General John Ashcroft had said there were no plans to raise or lower the terror alert level in the near future. Apparently, something has changed to merit this decrease in the threat.

Is this the right thing to do? I'm obviously not privy to the intelligence that is known at the top levels of government. But I'd imagine the terror alert level might rise again with any action against Iraq. Saddam Hussein has stated on multiple occasions that he intends to open a "second front" in the United States through terrorist attacks on American civilians. Such acts are a part of Al Qaeda's operational doctrine. The U.S. military has predicted for years that we would see terrorist attacks at home in the event of any war abroad -- particularly attacks on airports, seaports, rail lines, and other infrastructure systems necessary to support the war effort. I suspect we'll see the terror alert level rise again if/when hostilities begin in Iraq.

One note about threat levels and counter-measures: it's extremely costly to maintain a high threat level over extended periods of time. You risk tremendous disruption to every day life, and you expend tremendous amounts of time, energy and resources to implement these security measures. Police departments, fire departments, and military bases are not resourced for continuous operations at Condition Red. They fill these requirements out of hide -- often forcing cops and soldiers to work 12-hour, 16-hour, or sometimes 24-hour shifts to make ends meet. You can only keep that up so long. Thus, it's possible that the Administration is lowering the threat level now because it sees a major threat level increase in the future. Lowering the level to Yellow will give security personnel a chance to catch their breath before any future increase in America's readiness posture.

What would happen if we went to Condition Red?

Today's Wall Street Journal (subscription required) ran a pair of articles on what might happen if the U.S. raised the terror alert level further, from orange to red (or from Ernie to Elmo, in Sesame Street language). I was impressed by the articles; I think they got the main story right. Any increase to Red would necessarily entail a major disruption of American life. This elevation would drive a number of government actions at the federal, state and local level that could include things like government-office closures, road closures, school closures, and that's just the beginning.

Schools in Boston could close or go into "lockdown" mode, with doors locked and guards summoned. At ports in Los Angeles or Long Beach, Calif., the Coast Guard could choose to stop all 15 ships entering the ports a day, searching up to 8,000 cargo containers. Highways might be blocked and buses rerouted if they run near chemical factories.

That's a hint of what America could feel like under "red alert." Red, or "severe risk" of terror attacks, is the highest possible alert in the recently created Department of Homeland Security's five-color "security advisory system." The nation has never been under this new red alert before, though some officials say it would have been on Sept. 11, 2001, if the system had existed then.

Federal officials say they won't call a red alert lightly. The current orange alert -- one step below red -- was prompted by increased, albeit vague, reports of al Qaeda plots. The government wouldn't go to red unless "we had greater specificity with regard to the location, the specific target, perhaps the means," said Homeland Security Secretary Tom Ridge in a recent interview on ABC-TV's "Nightline." He added: "We're not there yet."

A U.S. invasion of Iraq -- or even an Iraqi retaliation against U.S. troops -- would not automatically trigger a red alert. "I think you will only see red if we are actually being attacked" on U.S. soil, a senior Homeland Security official said in an interview this week. The official gave the example of "a terrorist sitting in a building with a bomb and a chemical-weapon dispersal device" as the kind of thing that would trigger the red alert.

Appropriately enough given its name, the Wall Street Journal also ran an article titled "What Would Wall Street Do On Red Alert? Does It Know?". Here's a brief excerpt:

Much of the financial system's response will depend on the specific details behind the government's decision to boost the threat level to "red" for the first time, as well as any geographic specificity related to the warning. The start of a war wouldn't necessarily mean a move to red alert. But with war on the horizon, more companies are focusing on what to do in a red-alert scenario.

The New York Stock Exchange and the Nasdaq Stock Market say they will remain open in the event of a red alert and won't move to backup facilities until absolutely necessary. The two markets say they could trade each other's stocks if need be: The Nasdaq, which is owned by the National Association of Securities Dealers, says it is equipped to trade NYSE-listed stocks, and the NYSE is prepared to trade about 250 of the biggest Nasdaq companies. But some securities firms are making more elaborate plans related to any move to a red alert, citing the possible closure of government facilities and transportation systems.

* * *
After the Sept. 11 attacks, the country's major financial firms and banks beefed up their emergency plans and, in some cases, even developed new backup sites to use in the event of a disaster. The Securities Industry Association, a Wall Street trade association, has developed a "virtual command center" in case of an attack but has no specific advice for what firms should do if the country is put on red alert.
* * *
Depending on the guidance from authorities, banks' responses could conceivably stretch to closing branches, switching to backup facilities, and evacuating staff. But most commonly, the plan is to stick as close to business-as-usual as regulators permit. Already, nearly all banks have heightened their security procedures following the 2001 attacks.

"If a disruption causes a temporary problem in one of our channels -- stores, ATMs, phone banks, online banking -- customers likely will be able to do their business at another one of our channels," says a spokesman for Wells Fargo & Co., which has one of the nation's largest bank-branch networks.

Bottom Line: In addition to stockpiling duct tape, plastic wrap, food, water, flashlights, radios, and dry socks... maybe we should all stockpile some cash too? I don't think we'd see a 1929-style run on the banks if a major attack occurred, especially given the proliferation of ATMs. But it may be prudent to include a financial component in every family's personal homeland security plan. Having a little extra cash on hand in the house -- to buy essentials like food and water -- seems like a good idea if there's a viable threat to America's financial system.

Pentagon Briefing II: Human shields may be combatants

Early on in the Pentagon briefing I mentioned yesterday, the senior defense official postulated that the 'human shields' in Baghdad may actually become enemy combatants (and therefore lawful targets) by their voluntary actions to aid the enemy. I didn't write anything on this because I thought it was a mistake, by a defense official who admitted he didn't know the law on this area. Nonetheless, Reuters news service and the LA Times picked up this story today and ran with it. (See this Wash. Post story for General Franks' thoughts on this issue.) Here's what the defense official said in the brief:

Excerpt from "A Senior Defense Official" (Most likely a career staffer in the office of the Under Secretary of Defense for Policy)

To sum up, we are now observing an activity that has been going on for over 10 years. The Iraqis have regularly placed air defense missile systems and associated equipment in and around civilian areas, including parks, mosques, hospitals, hotels, crowded shopping districts, and even in cemeteries. They have positioned rocket launchers next to soccer stadiums that are in active use, and they've parked operational surface-to-air missile systems in civilian industrial areas.

This is a well-organized, centrally managed effort, and its objectives are patently clear: preserve Iraq's military capabilities at any price, even though it means placing innocent civilians and Iraq's cultural and religious heritage at risk, all in violation of the fundamental principle that civilians and civilian objects must be protected in wartime.

Now as you all know, there has been plenty of reporting in the press on foreign volunteers as human shields going to Iraq. And what we're going to provide you with today -- I'll just hold up a couple articles I brought from The New York Times and The Washington Post -- is an assessment by the National Intelligence Council, which goes into some detail on, again, the history since Desert Storm of how Iraq has attempted to use foreign volunteers to protect legitimate military facilities. And I think you'll find this study quite interesting.

With that, we'll open it to questions. Yes, sir?

Q: Going to that, using foreign volunteers, why do you not consider those folks to be enemy combatants since they voluntarily place themselves there?

Sr. Defense Official: I'm not a legal expert, but you certainly could argue that since they're working in the service of the Iraqi government, they may, in fact, have crossed the line between combatant and noncombatant. But I can't pass judgment on that.

Yes, sir?

Q: Two questions. One, back in 1991, Saddam also took some civilians -- held them hostage for a while, but my memory's a little fuzzy. What happened in that case? Did he eventually let them go? And did -- is it your assessment at all that he learned anything from that or may decide that this time, maybe the strategy of letting them go, which he did last time, was the way to go? Do you think --

Sr. Defense Official: Obviously, as I recall, what happened was he took a number of foreigners, including U.S. citizens who were in Iraq, as well as Kuwaitis and POWs -- and it's described in some detail in the NIC report -- and distributed them at facilities. They were -- the reporting was they were relatively well-treated; they were moved around a lot. When he decided that the international uproar and furor over it was more negative than the positive results of using the human shields, he let them go. So, I think he has a certain calculus that, you know, he will look at those options and decide at what point it would work.

Keep in mind that the 1991 incident -- most of them did not involve volunteers. These were people who were "guests" of the Iraqi government, was the way they described it -- pardon my sarcasm. But they were, in effect, prisoners. So that's slightly different than what we're seeing in terms of foreigners going to the country. That also happened in the mid-'90s, where we had, during the 1997 crisis, we did have people going to Iraq who were volunteering themselves as shields. So, I think he'll use a calculus to try and determine when is this working for me, when is it not?

Q: And just one sort of technical question. It's often stated that the use of human shields is in violation of the international law of armed conflict. When you say that, are you referring to a recognized body of law? Or, you know, where can we go look that up? Is it a series of --

Sr. Defense Official: Yeah. I'm going to refer you to the OSD general counsel, but my -- I know there are certain portions of the Geneva Convention that state that explicitly, that it is not permissible to use the civilians. I don't know if they -- I think they may even use the term "shield."

They don't say "human shield", but if you go to OSD general counsel, they have the citation from the appropriate conventions.

Yes, ma'am.

Q: It seems to me -- I want to go back to this point here. This is a really critical distinction. Are these people, once they volunteer, are they putting them -- taking themselves away from civilians and they're there now on the combatant side? This to me seems like the crux of the whole matter. And you're saying, "I don't know, I'm not a legal expert." Somebody must have figured this out at the Pentagon.

Sr. Defense Official: Again, yeah, I'm -- I'm an intelligence expert. It's not that I'm trying to dodge the question, but I think we would need OSD policy and legal affairs folks to answer your question.

Analysis: I think the "Senior Defense Official" got snookered by some smart reporters. The law of armed conflict does not convert these individuals to enemy combatants simply by their presence in Baghdad. They continue to be civilians near legitimate military targets. However, if they actively aid the enemy, then they become combatants. It's a hard case, though, because you can argue (persuasively) that the mere action of going to Baghdad with the intention of frustrating U.S.-led bombing campaigns as a human shield is an act of giving aid to the enemy. In any case, I predict we'll see some comments from Secretary Rumsfeld or Deputy Secretary Wolfowitz in the near future which clarify these comments, on the advice of counsel from the Pentagon's legal shop.

Wednesday, February 26, 2003
AP: Iraq positions military equipment next to holy sites

The Pentagon held a press conference today to show satellite (and other) reconnaissance photographs of Iraqi military equipment being moved next to mosques and other religious sites. Ordinarily, these sites would be protected locations under the international law of armed conflict, and they could not be deliberately targeted. However, by moving military equipment to these locations, Saddam Hussein has made them into targets. This is a basic principle of international law -- the rule of necessity trumps the rule for sparing civilian targets.

WASHINGTON (Reuters) - The Pentagon on Wednesday displayed a series of aerial photographs that it said showed Iraq is placing military equipment near mosques and other civilian sites in a bid to ward off attacks by U.S.-led forces or create an international incident if bombed.
* * *
One picture showed what he said was a large ammunition depot built around a mosque. Another showed what he said were retaining walls built for ammunition or military equipment near a warehouse used to distribute food provided by the international community for the Iraqi people.

Another showed what he said were antiaircraft weapons placed on the roof of the Iraqi government's Ministry of Media headquarters in Baghdad.

The official said Saddam hoped that positioning military equipment near such sites would dissuade coalition forces from bombing them, or if the sites were bombed, it would create an international incident leading to international condemnation of the U.S.-led invasion.
* * *
The official said the United States regards military equipment placed near such sites as legitimate targets in war, although he acknowledged that in the 1991 Gulf War the U.S.-led coalition held its fire when the Iraqis parked two MiG-21 warplanes next to a 4,000-year-old archeological treasure from ancient Mesopotamia, the ziggurat at Ur.

The paradigmatic case taught in the Army concerns an enemy sniper (or artillery observer) who hides in a church tower. U.S. commanders have the right -- indeed the duty -- to engage that enemy soldier out of military necessity. If the situation requires it, the commander can go so far as to use a heavy weapon (e.g. M1A2 main gun) to demolish the church tower. (Necessity would probably not allow the use of indirect fire, because of the risk of collateral damage, but it's a tough call). In any case, the moral and legal responsibility for the site's destruction belongs to the enemy force -- not the U.S. The enemy turned the religious site into a military target by their action, and thus the enemy bears the legal and moral blame for the destruction of the church.

This case study applies very neatly to the Iraqi case. Saddam Hussein has decided to move military equipment to positions next to holy sites, knowing that the U.S. does not deliberately target such sites because they have no intrinsic military value. However, he fails to understand that the U.S. calculus changes the minute he parks a military vehicle next to that holy site. That act transforms the once-innocent holy site into a legitimate military target, both as a matter of international law and U.S. practice. Saddam Hussein bears the legal and moral blame for that transformation, since it was his decision to move the equipment there. If civilians die in those sites because he turned them into military targets, he can be tried before a military tribunal for violation of the laws of war. In theory, so too can the senior officers who implemented this decision, since the "superior orders" defense only discharges culpability at the lowest levels of command.

Update: You can read the entire transcript of the Pentagon briefing here. The briefing slides are also available here, if you want to see the evidence for yourself.

About Face!
Pentagon clarifies Shinseki remarks about post-war reconstruction

I'm still not sure whether Gen. Eric Shinseki made a mistake of candor yesterday, or whether he was uninformed about his estimate of "several hundred thousand" soldiers for a post-war occupation of Iraq. Regardless, the Pentagon held a press conference today to clarify several of the major issues associated with the current plan to occupy and rebuild Iraq. Two major areas stood out to me from the press conference -- a discussion of civilian casualties, and of U.S. personnel commitments.

1. Discussion of civilian casualty estimates

Q: No, in terms of casualties and refugees, and what are your going-in assumptions?

Collins: In refugees, the assumption, which is not an absolute worst case but is a bad case, as was noted yesterday at the White House press conference, is a couple of million, two million. And that would include IDPs [internally displaced persons] and refugees.

Q: And casualties?

Collins: And casualties? We're not in the business of making casualty estimates. I've heard some outlandish figures yesterday. I can tell you that we're doing our absolute level best to ensure that the number of casualties from military activities will be as low as humanly possible.

Q: Got that, but you obviously have been planning for some kind of a number, so that you can have medical supplies in the works and in following in and -- (inaudible). What are you dealing with?

Collins: We have not planned on a deliberate number of casualties in the civilian population, and that's not been part of our methodology of planning.

Q: So how do you plan if you don't have a number?

Q: What metric do you use?

Q: (Inaudible.)

Collins: What metric do we use for what subject?

Q: For, say, let's say, casualties. I know this is a sticky issue for you guys, and I'm aware that you don't want a headline tomorrow coming out, saying, "Pentagon plans on 8 million Iraqi civilian casualties." But it strains belief just that you all can be planning for five months and not be thinking, "Okay, this is a worst- case scenario. What do we need to have on hand -- medically, water -- in the event that that happened?"

Collins: A lot of that's been done, but I honestly do not know that anyone has ever said that this would arise -- this war or this scenario would result in so many enemy -- so many Iraqi civilian casualties. I haven't seen that.

Most of the planning that's been done in that area has been done in using sort of multiple scenarios. There are sort of, you know -- as you know, there are all kinds of risk assessments that are made and all kinds of damage assessments that have been made. And that planning is mostly in the reconstruction end of this. But I honestly don't know a number that I could hang my hat or your hat on.

2. Discussion of the number of troops needed to occupy Iraq

Q: Do you have an estimate on the number of military -- U.S. military personnel who would be involved in a humanitarian operation in a post-conflict situation? And how many would be involved in providing security in the country in that immediate post-war period?

Collins: I don't have that number. The security business would be done by another group. I can say that by way of AID and civil affairs -- by way of civil affairs people involved with the plan, a few thousand is a good, round number. And AID will also have a large contingent, at least 60 of who will be working directly with the troops and very, very close to the front lines.

Analysis: Referring to "several hundred thousand" soldiers as "the security business" is an interesting way to euphemize a major commitment of U.S. troops. Calling them security for the aid and redevelopment effort may be conceptually accurate in one sense. But it's also a public-relations ploy to minimize the number of troops required. Saying they're going to work for US AID is another way of minimizing this mission. I can't predict how many troops will actually be required when it's all said and done. My guess: it's going to be more than a mere "security" force.

Rifles of Choice: Why America's military may be carrying the wrong weapon

Stop the Bleating has some really intelligent thoughts today on the differences between the M16A2 rifle and the M4 carbine. Currently, the U.S. Army appears to be providing M4s to most of its infantrymen and support troops, and the Marine Corps has decided to procure the M4 for a good portion of its infantry as well. In any case, this is a really important issue, and Stop the Bleating's note is worth reading.

I personally carried the M4 carbine as an MP lieutenant and captain during my time on active duty, and I liked it. My MP platoon (attached to an infantry brigade) had a combat mission, but it was different than that of the infantry. We focused primarily on rear-area reconnaissance, on urban warfare, and on dealing with civilians on the battlefield. Those are fundamentally different than what an infantryman might see in Afghanistan or Iraq. In that kind of theater, long-range accuracy and muzzle velocity are far more important than the ability to shoot at 50m or less. I still think the M4 is an outstanding weapon for 'close-quarters battle' of the kind you see in urban environments. But it's not the best all-purpose infantry weapon out there.

WP: Contracts awarded to develop new smallpox vaccine

Today's Washington Post reports that a pair of contracts have been awarded to companies developing a new smallpox vaccine -- one that avoids a number of the complications currently causing problems for the President's smallpox-inoculation campaign. This vaccine may not come to fruition for some time, but this is still money well spent. If nothing else, it shows the government cares about the health isssues with the current vaccine, and wants to develop an alternative in the future that will avoid those complications.

The vaccine will be a virus called "modified vaccinia Ankara" (MVA), a severely crippled version of the microbe used as a smallpox vaccine. MVA is unable to replicate in mammalian cells, although it does grow in chicken cells, which is where it is made.

The two companies, Acambis of Cambridge, Mass., and Bavarian Nordic of Copenhagen, will receive a total of $20 million to grow the virus and test it in animals and healthy volunteers. That work should be done by the end of this year, said Gordon Cameron, an executive of Acambis, which received a $9.2 million grant.

Studies will be done next year on people whose immune systems are compromised. Before the studies are complete, however, the government is expected to order 30 million doses of the vaccine as a stockpile for people who could not use the traditional vaccine in the unlikely event that smallpox, eradicated in the 1970s, reappears.

The traditional vaccine, which is also being made and stockpiled, produces a short-lived vaccinia infection in people receiving it. That infection can get out of control, occasionally with fatal consequences, when it occurs in people with damaged immune systems.

NYT: U.S. Intelligence Categorizes Iraqis to Punish, or to Deal With

Today's New York Times leads with a story about the existence of a "black/gray/white" list for Iraq. These lists are generated by the Intelligence Community for all theaters in which U.S. soldiers operate. They tell everyone -- from the top commanders to the lowest soldiers -- who is a bad guy, an in-between guy, and a good guy. The implications are obvious. You want to work with the good guys, catch the bad guys, and persuade the in-between guys to join your side. In Iraq, I suspect we'll be conducting a lot of Civil Affairs/Psychological Operations directed at turning as many of the in-between guys to our side as possible -- and rooting out the bad guys ASAP. Those two tasks will be critical for the post-war occupation effort. We need to pacify the Iraqi population and win them to our side before any serious nation-building can take place.

The officials said the computer database, whose existence was previously undisclosed, divided the Iraqi leadership into three categories: hard-core allies of Mr. Hussein; senior Iraqis whose allegiances are uncertain but who may be willing to cooperate with United States forces; and another group of people who are believed either to secretly oppose the government or whose technical expertise is deemed crucial to running a post-Hussein government.
* * *
The list was assembled by a number of government agencies and departments, including the Central Intelligence Agency, the Pentagon and the Justice Department. Senior officials acknowledged that the idea of identifying the leadership of a potentially hostile country was not a new one. But they described it as the largest effort of its kind, one that dwarfs work by American intelligence to identify Taliban leaders during the war in Afghanistan or to analyze the military and political leadership in Belgrade during the war in Kosovo.

The key thing here is to disseminate this list down to the lowest level. Secretary Rumsfeld -- or General Franks -- is not going to be the guy who encounters these Iraqi officials. It's going to be PFC Joe Snuffy, securing an intersection, who happens across these individuals as he checks their papers at a checkpoint. Or it's going to be Captain (Dr.) Mary Snuffy, who's treating casualties at an aid station and recognizes the face of one of the really bad guys. (We'll still treat him, but after he heals, we'll try him as a war criminal). The use of "black/gray/white" lists in the Balkans worked well when the lists were dynamically updated and distributed down to the squad and team level, where individual soldiers could use them.

As an aside, the U.S. Army's new battlefield communications equipment will only help in this regard. I wrote an article titled 'The Force XXI Military Police' for Military Police journal in May 2001, which which I explained how this might work:

Journalists stressing the timeliness of their profession like to say that "yesterday’s news wraps today’s fish." The same could hold true of a black/gray/white list in the hands of an MP team leader. Yesterday’s list may not reflect an indictment by local officials or The Hague. To conduct effective police-intelligence operations, the MP need to have access to timely information.

In addition, the FBCB2 System has a form of tactical e-mail that ties into the Army’s higher-level tactical computer systems. This e-mail function allows the MP at the team level to send and receive information with the MP in the division provost marshal’s cell.

Just as some software programs enable a user to build an address list and send out a mass e-mail, so does the FBCB2 System. The text messaging feature of the FBCB2 System is one of the most powerful, if not the most simple. It enables soldiers and leaders to pass information up and down the chain of command, rapidly, with absolute speed and security.

If the division provost marshal received an updated black/gray/white list, it could be disseminated within minutes to every MP team in the division. Likewise, the division G5 cell could do the same, because all of the FBCB2 Systems users belong to a global address book, just like an e-mail directory.

A black/gray/white list is only one example. The MP can submit text reports on anything they observe to their leadership through the FBCB2 System. An MP team can request CID support this way, or re-port the 5 Ws of a traffic accident. Whatever the incident, the FBCB2 text message provides a vehicle for reporting it.

Sequel: FBCB2 has been fully fielded to the Army's 4th Infantry Division, and I've read reports that it has been fielded to other units including the Army's 3rd Infantry Division and 3rd Armored Cavalry Regiment. Other units -- such as the Marine Corps -- have been digitized with different hardware/software. But in general, most units in the American military have a digital feed down to the battalion level, or lower. In practice, this means information can move at the speed of light from the top (Joint Chiefs of Staff) to the bottom (infantry battalion or MP company).

Tuesday, February 25, 2003
Chief of Staff of the Army: Iraq occupation will take "several hundred thousand soldiers"

Speaking to the Senate Armed Services Committee today, U.S. Army General Eric Shinseki predicted that "several hundred thousand soldiers" would be required to occupy and pacify post-war Iraq. We're talking about post-hostilities control over a piece of geography that's fairly significant, with the kinds of ethnic tensions that could lead to other problems," he said. Gen. Shinseki added that this was a rough estimate, and based on very pessimistic estimates of the Iraqi infrastructure. He also said that allied support would be "helpful" -- if not required -- to carry out a mission of this size.

Iraq is "a piece of geography that's fairly significant," Gen. Eric K. Shinseki said at a hearing of the Senate Armed Services Committee (news - web sites). And he said any postwar occupying force would have to be big enough to maintain safety in a country with "ethnic tensions that could lead to other problems."

In response to questioning by Sen. Carl Levin (news, bio, voting record) of Michigan, the senior Democrat on the committee, Shinseki said he couldn't give specific numbers of the size of an occupation force but would rely on the recommendations of commanders in the region.

"How about a range?" said Levin.

"I would say that what's been mobilized to this point, something on the order of several hundred thousand soldiers," the general said. "Assistance from friends and allies would be helpful."

Analysis: This number represents a major departure from previous estimates. Until now, the Pentagon has shied away from publicizing its predictions of what an occupation would require. In other reports, I've seen estimates ranging from 100,000 to 250,000 soldiers for any occupation duty, with a substantial part of that force coming from NATO or other allies. However, Shinseki's prediction may hinge on more pessimistic assumptions than those undergirding previous public estimates.

This may have been a mistake of candor -- or it could be a mistake altogether. It's possible (though I'm speculating) that Gen. Shinseki is not "in the loop" on these matters. By law, the services (Army, Navy, Air Force, Marines) are responsible for training/recruiting/equipping the forces -- but they don't actually do the fighting. (See the Goldwater-Nichols Act of 1986) The fighting gets done by the Unified Combatant Commands, such as Central Command or Pacific Command. This is an operational decision, not an administrative one, and it's possible that Shinseki is not part of the decision process.

Gen. Shinseki may also be trying to prepare the American public for a massive wave of reserve mobilizations tied to post-war occupation needs. America's Army does not have the active-duty force to conduct this mission; it would have to dip very deep into the reserve components to do so. Since Sept. 11, the reserves have mustered close to 150,000 soldiers for various homeland security and Iraq-related missions. The reserves -- specifically the National Guard -- have large combat brigades and divisions which have not been touched. I think it's highly likely those units will start to be called up soon. (Sooner rather than later, given the need to train them up before deployment) The reserve components have proven their mettle when it comes to peacekeeping/nation-building in the Balkans, so they may be a good choice for the post-war Iraq occupation mission. More to follow...

Security measures lacking at Los Alamos laboratory

Noah Shachtman has this disturbing note on the state of security at the Los Alamos nuclear laboratory in New Mexico. As background, Los Alamos is the place where the Manhattan Project developed the first atomic bomb in 1945. The University of California has managed the lab since then for the Department of Energy, albeit with several problems. These revelations may be the final nail in the coffin for the UC contract, since the Energy Department has been investigating the UC's management practices for several years with an eye towards giving the contract to someone else.

There are no armed guards to knock out. No sensors to deactivate. No surveillance cameras to cripple. To sneak into Los Alamos National Laboratory, the world's most important nuclear research facility, all you do is step over a few strands of rusted, calf-high barbed wire.

I should know. On Saturday morning, I slipped into and out of a top-secret area of the lab while guards sat, unaware, less than a hundred yards away.

Despite the nation's heightened terror alert status, despite looming congressional hearings into the lab's mismanagement and slack-jawed security, an untrained person -- armed with only the vaguest sense of the facility's layout and slowed by a torn Achilles tendon -- was able to repeatedly gain access to the birthplace of the atom bomb.

For details -- and pictures -- click on over to my Wired News story here.

THERE'S MORE: Los Alamos is separated from Bandelier National Mounment by New Mexico State Road 4. Hikers frequently pull off to the side of the Route 4 to admire the snow-touched Jemez mountains, or to take a walk through the desert's multicolored stones. A Bandelier park ranger tells nature-lovers that they can "go hike on Energy Department lands" if they don't want to pay Bandelier's $10 parking fee.

"You can even bring your dog," she adds.

WSJ: Above and Beyond
A tale of valor in the streets of Mogadishu

Dorothy Rabinowitz's column in today's Wall Street Journal (available free at OpinionJournal.Com) should give Saddam Hussein pause. She recounts the stories of Gary Gordon and Randall Shughart, the two Delta Force soldiers who gave their lives to save their fallen comrades in the Battle of Bakara Market made famous by Mark Bowden's book Black Hawk Down. In this battle, a company of Army Rangers and platoon of Delta Force operators found themselves encircled by thousands of armed Somalis, unable to be extracted. Two Black Hawks were also shot down by Somali rocket-propelled grenades. Despite the overwhelming odds, the American soldiers persevered, fighting off human waves of armed Somali paramilitaries. (Some experts now think the Somali forces were trained and commanded by Al Qaeda operatives) Casualty estimates vary, but many think the U.S. soldiers killed more than 1,000 Somalis for the 18 dead they sustained.

After the battle, President Clinton pulled the U.S. out of Somalia. After-action reviews revealed a litany of errors, including the gradual expansion of the Army's mission from humanitarian relief to armed intervention, and the Pentagon's failure to send heavy armor support when requested. Today, American military officers are almost universally required to read Black Hawk Down -- both for its lessons of courage and leadership, and as a case-study in what the next war might look like. Ms. Rabinowitz has a message for Saddam Hussein: don't learn the wrong lessons from 3-4 Oct 93.

It has been said of Osama bin Laden that the main lesson he derived from the war in Somalia was that the infliction of heavy casualties was all that was needed to cause Americans to turn and run. Americans, he suggested, are weak that way, and soft. Undoubtedly a happy thought for those subscribing to this view, but those who do would be well advised to consider certain aspects of that war in Somalia--in particular the dogged determination of the Americans who fought the enemy in the streets of Mogadishu on Oct. 3, 1993, a battle in which two Rangers were awarded Congressional Medals of Honor.
* * *
It does not require reference to Medal of Honor recipients to certify the U.S. military's courage and tenacity. Still, now is not a bad time to remember what happened when an outnumbered, underequipped force, hamstrung by superiors more concerned with appearances than success, was sent into Somalia--and to reflect on the nature of men impelled to acts of valor and selflessness, deeds that seem, still, to shine forth from that darkness.

Portland case to test USA PATRIOT Act surveillance powers

The Associated Press reports on a case in Portland's federal district that has far-reaching implications for Title II of the USA PATRIOT Act (Public Law 107-56). This case, involving the criminal prosecution of several men allegedly connected to Al Qaeda, uses evidence that was gathered through secret warrants under the Foreign Intelligence Surveillance Act (FISA). That act was originally passed in 1978 to balance Cold War counter-espionage needs with the protection of civil liberties. Originally, prosecutors could generally not get FISA warrants for criminal matters; only for intelligence matters. The PATRIOT Act amended that rule, such that now foreign intelligence needs to be a "significant purpose" of the investigation -- but not the sole purpose.

U.S. District Court Judge Ancer Haggerty was expected to hear arguments Tuesday and Wednesday asking the government to reveal its justification for 36 secret warrants the FBI used to watch and listen to the suspects.
* * *
Defense attorneys plan to challenge evidence collected under the warrants issued by the ultra-secret Foreign Intelligence Surveillance court, or "spy court," Boise said.

Law enforcement, defense lawyers and legal experts say the case in Portland is farther along than several other potential challenges to the new spying powers under a provision of the Patriot Act.

"To the best of my knowledge, it's the first," said David Sobel of the Washington-based Electronic Privacy Information Center.
* * *
Any decision by the judge on the warrants likely will be appealed to the 9th U.S. Circuit Court of Appeals in San Francisco and then to the Supreme Court, Boise said.
* * *
The FBI started watching the Portland suspects a few weeks after Sept. 11, when a sheriff's deputy in Skamania County, Wash., spotted some of them firing guns for target practice in a gravel pit.

Secret warrants in hand, the FBI, helped by Oregon State Police, the Portland Police Bureau and other agencies, began around-the-clock surveillance by early 2002.

Last October, the FBI arrested Ford, Jeffrey Leon Battle, his ex-wife October Martinique Lewis, and brothers Ahmed Ibrahim Bilal and Muhammad Ibrahim Bilal. A sixth suspect, Jordanian native Habis Abdu al Saoub, who is believed to be the group's leader, remains at large.

Analysis: This case, along with the Al-Arian case, are important tests of the USA PATRIOT Act and its changes to FISA surveillance power. In the old days of counter-espionage and counter-terrorism, the government would gather this intelligence and use it to expel diplomats or take other action in the foreign-policy arena. Today, with the threat of terrorism, we increasingly turn more and more to the criminal courts as a means of trying and incarcerating suspected terrorists. Generally, that's a good thing. As a normative manner, we ought to use the criminal courts as often as possible for the trial and detention of suspected terrorists. These courts give defendants due process and constitutional protections they would not ordinarily get on the field of battle -- something which is very important when dealing with terrorists who masquerade as U.S. citizens or residents.

The alternative to using FISA-gathered evidence in criminal courts is to use FISA-gathered evidence to support detention of suspected terrorists as 'enemy combatants.' (See, e.g., Padilla v. Bush and Hamdi v. Rumsfeld) If the Justice Department does not win this case -- and the other FISA cases like it -- I believe the government will turn increasingly towards alternate means of justice such as military detentions and military tribunals.

Monday, February 24, 2003
Federal judge dismisses missile-defense lawsuit after government intervention
'State secrets' privilege asserted to pre-empt the plaintiff's discovery efforts

This morning in Los Angeles, U.S. District Judge Ronald S.W. Lew dismissed a lawsuit by Dr. Nira Schwartz against TRW and Boeing [Case Number CV 96-3065-RSWL] which was filed under the False Claims Act. This suit alleged, among other things, that TRW and Boeing had falsified test data and misled the government about the ballistic missile defense system they were designing for the U.S. Ms. Schwartz sought discovery of various scientific and technical documents to prove her case, many of which were highly classified. Some were so classified that they were known to just 3 people in the Pentagon -- Secretary Rumsfeld and two others -- according to the New York Times.

I attended this morning's hearing after reading about the case in the NY Times earlier this month. Justice Department attorney Dennis Egan made a persuasive case for the government, arguing that there was no way for Dr. Schwartz to put on her case without compromising classified information. He pointed to several places in her complaint alone where she referred to classified documents -- or even spilled their contents. Judge Lew said he read some of these documents in camera before the hearing, and agreed with Mr. Egan's arguments. He granted the government's motions to dismiss the case with prejudice.

Analysis: Academically, this case is very interesting. In the criminal context, there is a procedure for managing classified information. The Classified Information Procedures Act of 1980 spells out a framework for managing classified information being used in criminal prosecutions or defenses. This makes sense -- lots of criminals are netted by highly-secretive government investigatory efforts, often where the lines between crime and national security are blurred. (See, e.g., the Moussaoui and Lindh cases in U.S. District Court in Virginia) But in the civil context, there are few procedures for managing highly classified information -- especially of the kind in this case. Thus, I believe that Judge Lew was right to dismiss this case.

Federal court in Boston dismisses anti-war lawsuit

As I predicted when the suit was filed, U.S. District Judge Joseph Tauro dismissed a civil lawsuit today which sought to enjoin President Bush from waging war on Iraq. The suit claimed, among other things, that the President was abusing his Art. II power as Commander-in-Chief by acting without an explicit declaration of war.

...U.S. District Judge Joseph Tauro ruled Monday that the court did not have jurisdiction to issue an injunction against Bush.

Tauro said the lawsuit engaged "political questions in the legal sense that are beyond the jurisdiction of the court."

The judge added that, considering the October congressional resolution, he could not find evidence of any conflict between the will of the executive and legislative branches.

Update: Findlaw.Com has posted the Justice Department's well-written memorandum in this case. For anyone interested in Constitutional Law and the President's power in foreign affairs, this brief makes for an engaging read.

Former SCOTUS law clerk criticizes NY Times column

Howard Bashman reprints a great critique of today's column by Anthony Lewis in the New York Times. That column, titled Marbury v. Madison v. Ashcroft, argued forcefully for judicial review of the Bush Administration's actions in the war on terrorism. It used the cases of Yaser Hamdi and Jose Padilla to broadly argue for increased judicial scrutiny of government actions with respect to 'enemy combatants.' However, I think the anonymous writer makes a better argument -- you be the judge.

Excerpt from NYT Piece:

Two American citizens are now held in solitary confinement under this asserted presidential power. One, Yasser Hamdi, was found under unexplained circumstances on a battlefield in Afghanistan. . . .

The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., made the first appellate ruling against Mr. Hamdi. It held that the constitutional guarantee of the right to counsel 'in all criminal prosecutions' did not apply because Mr. Hamdi was not being prosecuted. That reasoning reduced constitutional law to sleight of hand: The government can impose solitary confinement, perhaps for life, if it simply avoids giving the prisoner a trial.

Law Clerk Response:

But that is not at all what the Fourth Circuit held. The facts dismissed by Lewis as "unexplained circumstances" are that Hamdi was captured on a battlefield, traveling with a Taliban platoon, and carrying an AK-47. The Fourth Circuit's opinion is carefully limited to these facts, saying:

"One who takes up arms against the United States in a foreign theater of war, regardless of his citizenship, may properly be designated an enemy combatant and treated as such. . . . At least where it is undisputed that he was present in a zone of active combat operations, we are satisfied that the Constitution does not entitle him to a searching review of the factual determinations underlying his seizure there."

The opinion concludes by emphasizing this important qualifier, saying:

"It is important to emphasize that we are not placing our imprimatur upon a new day of executive detentions. . . . But, Hamdi is not 'any American citizen alleged to be an enemy combatant' by the government; he is an American citizen captured and detained by American allied forces in a foreign theater of war during active hostilities and determined by the United States military to have been indeed allied with enemy forces."

For a columnist with a worldwide audience to pretend that such an eminently reasonable opinion permits the government to secretly detain any American citizen in lieu of prosecution (and threatens Marbury v. Madison to boot!) does a disservice to what is at bottom one of the most important constitutional debates of our time.

Mr. Lewis should read the careful opinions that this debate is generating, not rely on press releases from the ACLU or People for the American Way. His column today is embarrassing.

WP: Bush Smallpox Inoculation Plan Near Standstill
Medical Professionals Cite Possible Side Effects, Uncertainty of Threat

Today's Washington Post reports that the plan to inoculate health-care workers and first responders against smallpox has hit a brick wall: opposition from the doctors, nurses, EMTs, and other workers themselves. Across the county, these workers have refused the shot in large numbers. To date, the U.S. has inoculated less than 1% of the 500,000 workers it wants to protect against smallpox.

Although the federal government has shipped 274,000 doses of vaccine to states since the program began Jan. 24, hundreds of hospitals, a half-dozen major unions and even some public health departments have refused to participate. Even the states that are vaccinating volunteers report that they have drastically scaled back their original plans.

Aside from a few pockets of enthusiasm, the vast majority of medical professionals remain unconvinced that the threat of a smallpox attack is serious enough to administer a vaccine known for its serious side effects, especially when federal officials have refused to create a compensation fund for people sickened by the vaccine.

"At this point I'm more concerned about seeing a vaccine complication than a case of smallpox," said Steven Gordon, hospital epidemiologist at the Cleveland Clinic, where fewer than 100 of thousands of eligible employees will be inoculated next month.
* * *
Much of the debate centers on the definition of "prepared." Many infectious-disease experts said stockpiling vaccine in regional locations, training staff and practicing emergency drills would adequately position them to handle an outbreak. But others said the panic likely to ensue with even a rumored case makes that unrealistic.

"Frankly, the more of these workers, along with police and fire personnel, who are vaccinated before an event occurs, the greater will be our ability to maintain essential services in the crisis situation of a deliberate smallpox release," said Michael Osterholm, director of the Center for Infectious Disease Research and Policy at the University of Minnesota.

In my opinion, this may have disastrous consequences for our readiness to deal with any smallpox attack. For this effort to be successful, we must build a 'critical mass' of inoculated health-care professionals who have immunity and can work with smallpox victims. The L.A. County guidelines specify that each hospital should have the capability to treat one smallpox victim 24/7. This means that at least enough people have to be vaccinated to do every health-related function for one part of the hospital. I think this is a sensible minimum... but that health care workers really ought to do more. They are putting their hysteria and personal concerns over the needs of the community, something I think is irresponsible for someone entrusted with our health.

Sunday, February 23, 2003
NYT: U.S. fires first (digital) shots of war against Iraq

Monday's New York Times leads with an interesting article on "information warfare," and the American tactics being used already against Iraq. These range from the old-fashioned (leaflet drops) to the tried-and-true (radar jamming) to the innovative (hacking into air-defense computer systems). Ultimately, the aim of all these methods is to win the first stage of the war before the first shot is fired. This is called "setting the conditions" for success. If you can, through information warfare, throw your enemy off balance and cripple his senses, you stand a very good chance of winning when the first shots are fired.

Military planners at the United States Central Command expect to rely on many kinds of information warfare — including electronic attacks on power grids, communications systems and computer networks, as well as deception and psychological operations — to break the Iraqi military's will to fight and sway Iraqi public opinion.

Commanders may use supersecret weapons that could flash millions of watts of electricity to cripple Iraqi computers and equipment, and literally turn off the lights in Baghdad if the campaign escalates to full-fledged combat.

"The goal of information warfare is to win without ever firing a shot," said James R. Wilkinson, a spokesman for the Central Command in Tampa, Fla. "If action does begin, information warfare is used to make the conflict as short as possible."
* * *
Deception and psychological operations have been a part of warfare for centuries, and American commanders carried out limited information attacks — both psychological operations, or "psyops," and more traditional electronic warfare like jamming or crippling the enemy's equipment — in the Persian Gulf war in 1991 and the air campaign over Kosovo in 1999, as well as in Afghanistan. But commanders looking back on those campaigns say their current planning is much broader and more tightly integrated into the main war plan than ever before.
* * *
In a war against Iraq, military commanders say new technology will probably allow those electronic combat planes to plant false targets in Iraqi radars and spoof the air defense systems.

In an interview, Gen. John P. Jumper, the Air Force chief of staff, declined to discuss the highly classified technical advances, except to say, "We're approaching the point where we can tell the SA-10 radar it is a Maytag washer and not a radar, and put it in the rinse cycle instead of the firing cycle."

Los Angeles anti-terrorism readiness lags
Funding, bureaucracy, political inaction to blame

Today's Los Angeles Times has a well-reported article on the failures in L.A. to establish a viable anti-terrorism apparatus. In general, the article focuses on federal failures to provide grant money, city failure to allocate resources, and agencies' failure to take certain actions. City Councilman Jack Weiss sums up the problem well: "L.A. seemed to believe that it couldn't happen here. The sorry political reality is that politicians can see no upside in spending their limited resources and time on antiterrorism."

Given my background and work in this area, I have some thoughts on this subject.

1. The problem's not as bad as it seems. L.A. and California have some of the best "disaster response" systems of any city/state in the nation. These translate very well into "consequences management" capabilities in the event of a terrorist attack. And it's not just that the assets are there (though they are). California and L.A. have exercises these assets on a regular basis for at least the last three decades. Local police, fire, public-health, EMS, FEMA, OES, and other agencies respond to every wildfire, every earthquake, and every other event in the Southland. They have developed deep resevoirs of 'lessons learned' and practical experience in responding to any event -- no matter how complex. I am very confident that they could respond to a terrorist event.

2. L.A. and California have new capabilities that the article does not mention. It is true that the federal government has not come through with everything that it's promised since Sept. 11. No big surprise there. But the federal government has provided some critical assets to the Southern California area over the last two years. Foremost among these are the Civil Support Teams. These are 22-soldier rapid response teams trained to deal with any Chemical, Biological, Radiological, Nuclear or High-Yield Explosive event. The Defense Department trains/equips/funds them, and they report to the state National Guard and the Governor. To date, these teams have conducted many training exercises and several operational missions in California -- including the Super Bowl and World Series. They add a substantial component to California's AT readiness. There are other examples of where the federal govt. has provided stuff to the area, but this is the most salient.

3. L.A. and California have better intelligence today. There is a paradigm of anti-terrorism operations that I subscribe to, developed by Ian Lesser and others at the RAND Corporation. It divides anti-terrorism work into three categories -- shaping, decisive operations, and hedging operations -- which roughly correspond to before, during and after an attack. In the shaping category, L.A. has substantially better capabilities today than the article lets on. Specifically, the L.A. County Terrorism Early Warning Group, L.A. area Joint Terrorism Task Force, and California Anti-Terrorism Information Center, have combined to increase the amount of information sharing and intelligence analysis going on here. They're looking at indicators of near-term activity, and also of long-term activity in the future. This capability helps political leaders make better decisions, armed with good intelligence.

Bottom line: L.A.'s not the best out there when it comes to anti-terrorism preparedness. But this alarmist article distorts the story. It fails to paint an accurate picture of how prepared L.A. is. I blame the political leaders quoted in the story for distorting the truth in order to send a particular message. That may have short-term positive gains if it pressures the federal government to respond. But that benefit is substantially outweighed by the fear and panic this article will create in the public's mind.

Saturday, February 22, 2003
California "High Value Asset" list leaked to LA Times
Document contains prioritized list of potential terrorist targets

In a staggering breach of operational security, someone leaked California's master list of potential terrorist target to the Los Angeles Times. While the Times reporter did a good job of explaining what this list represents, local news stations and other papers have negligently reported the details of this story. Most of those media stories mischaracterize the list, its importance, or its reasons for existence.

This list was prepared by the California National Guard and the California Anti-Terrorism Information Center (CATIC), two agencies that play important roles in securing California from terrorism. It does not represent the most likely terrorist targets. It does not represent the most dangerous targets, or the targets that would cause the most civilian casualties. It does not have much predictive value at all. All this list does is assess the destructive/disruptive impact of terrorist events and attempt to rank sites by the political/economic/social/infrastructural impact an attack on those sites would have. This is significant, because it then enables the Governor (or other elected official) to understand what risk he has assumed by leaving certain areas unprotected. But it's not the only way to make the list, or the only way to present that risk to the decision maker. Predictive analysis of the threat must also be done, in order to give the decision maker an idea of how likely a particular attack or risk is.

In anti-terrorism planning, a common assumption is that you cannot protect everything. Instead, you must instead choose a methodology to rank those things that you intend to protect. This list represents just one methodology for doing so -- it ranks sites by the disruptive and destructive effect of an attack on those sites. Other methodologies include a calculation of attack probability, calculations of probable casualties, and other formulae. In any situation, the estimates are based on a series of assumptions which may or may not be true. As the threat becomes more likely or imminent, planners update these lists. Decision makers then allocate additional resources to high-risk/high-threat targets. It's a flexible, adaptive, dynamic system that never stops -- it continually adjusts to the threat.

Bottom Line: Without seeing the entire report here, I can't really comment on its veracity or value. I can only qualify its release by saying it's not the end-all/be-all list for the state of California. This report does not tell us anything we don't already know. It simply quantifies the effects of attacks on known targets, like L.A. airport and the Golden Gate Bridge, in order to aid decision makers like Gov. Gray Davis. This report should be understood for what it is, and should not generate more panic or concern than it warrants (which is not much.)

'Human shields' place themselves and Iraq in harm's way

Chris Baker has some good comments at Half Baked on the legality and wisdom of the civilian "human shields" now migrating to Iraq for the imminent U.S. offensive. Among other things, Chris explores the hypothetical possibilities of these civilians being used as human shields for forward-deployed forces (instead of Baghdad's critical infrastructure) -- and the possibility of them becoming actual Iraqi combatants.

Ultimately, customary and positive international law are clear: Iraq is on the blame line for anything that happens to these civilians. The deliberate positioning of civilians near legitimate military targets is clearly illegal, and Iraqi officials may be tried by international tribunals following the war and any regime change. Secretary of Defense Donald Rumsfeld has stated as much. In light of how we dealt with various Serb and Bosnian war criminals, I think this is a pretty likely outcome for most of the Iraqi government after the war.

Moreover, these civilians' actions may not affect U.S. targeting decisions at all. The U.S. takes extraordinary measures to minimize collateral damage in war. In Kosovo, the U.S. vetted every target with lawyers at multiple levels of command and cleared them with Washington, London and Paris. (See Wesley Clark, Waging Modern War) The Pentagon has some new technology to help it in this war, including more precision munitions than ever before and a new targeting system designed to make it easier for field commanders to avoid collateral damage. All of these measures are designed to avoid accidental civilian casualties -- killing Iraqi civilians whose only crime is proximity to a military target. These measures won't do much, however, to safeguard those misguided individuals (like the 'human shields') who voluntarily/intentionally sit on such sites.

U.S. sends additional troops to Colombia to fight terrorism
Deployment comes in response to cold-blooded execution of American personnel

The Washington Post reports that President Bush has ordered an additional 150 military personnel to Colombia to provide intelligence and operational support. Specifically, these additional troops will support the search for 3 of the 5 passengers on an American intelligence plane that crashed in Colombia. (The other two passengers were summarily executed by FARC on the ground) This deployment pushes the number of U.S. soldiers in Colombia over the Congressional limit, but so far Congress has not raised that as an issue.

For the moment, officials said, the troops' mission is to provide additional intelligence and guidance to Colombian military forces trying to locate and rescue the Americans and their captors in a mountainous jungle region about 220 miles southwest of Bogota. Asked whether U.S. forces would attempt a rescue themselves, an official said, "We would have the capacity to do that."

Officials declined to specify the units of the newly deployed troops. U.S. Special Forces trainers previously assigned to Colombia have also been assisting in the search for the men, who have been described as Defense Department contractors working on counterdrug operations.
* * *
U.S.-obtained intelligence has indicated that the three remaining Americans, whose names have not been released, are traveling with a group of rebels from the Revolutionary Armed Forces of Colombia, known as the FARC. Officials said the Colombian military was trying to keep the guerrilla group in a relatively confined area of about 37 square miles and to prevent their traveling deeper into rebel territory. But their exact location is said to be unknown, and officials said they were constantly on the move.

Colombian Defense Minister Martha Lucia Ramirez said yesterday that Colombian troops would attempt to rescue them only if the risk of their being killed was "practically nothing," the Associated Press reported from Bogota. Ramirez said Colombia was working closely with the United States "to identify the place where these citizens are and hopefully be able to conduct a rescue operation."

The U.S. won't say who these troops are... but the Washington Post speculates that they come from the U.S. Special Operations Community. I think the Post is right. The Army's Special Forces (and its Delta Force subsidiary) have extensive operational experience in Colombia, including the recent hunt for Pablo Escobar and other missions that have yet to hit the newspapers. The Colombian Defense Minister's statement about only attempting a rescue if the risk is "practically nothing" seems a little tepid. I don't think our President is willing to give up so easily on the Americans held by FARC. Consequently, he's sending these special ops troops to bolster the Colombian effort -- or take over it if necessary. Bottom line: I wouldn't want to be the FARC guys holding these Americans right now. U.S. special operations soldiers are very good at what they do.

Friday, February 21, 2003
NATO agrees to safeguard Turkey;
Turkey and U.S. agree to deployment of troops

In a pair of stories, the Associated Press reports that Turkey and the U.S. have agreed on the details of an American military package to deploy to that country, and NATO has begun to send AWACS planes and other assets to defend Turkey from Iraq. These are fairly significant milestones on the road to war with Iraq.

1. The deployment of U.S. forces (most likely my former unit the 4th Infantry Division) to Turkey is a key task for the American war plan. This sets the conditions for a U.S. attack from the north. Furthermore, the mere presence of these troops will have a stabilizing effect on Iraq's northern border. It's very likely the U.S. agreed to pacfiy the local Kurdish population and establish liaison with them to protect Turkey's southern border from this influence. Similarly, the presence of U.S. troops in Turkey preempts any Iraqi incursions there.

2. The deployment of NATO forces to Turkey may mark the turning of the tide in Europe. Until now, obstructionist nations like France, Germany and Belgium have kept such support from going through. In fact, they have done so in contravention of the NATO charter, which provides explicitly for such pro-active self-defense measures. This is a positive step for NATO in signaling that it is ready to support at least the defensive measures necessary for a Gulf War II. It's not a big leap from these measures to NATO providing post-war reconstruction and nation-building troops. Moreover, this decision represents the first major setback for French and German obstructionist efforts. I hope we see more.

Navy Seabees and the Legacy of John Wayne

In the Army, we used to say that God had a special place for combat engineers. Of all the units I worked with as an MP, I liked the engineers the most. They were tough, hard soldiers who could fight as infantry if necessary. Their leaders were hardened experts who knew how to accomplish any task -- and would get it done no matter what. And they were pretty smart, too -- you could always expect innovative solutions to come from the 299th Engineer Battalion.

Today's Los Angeles Times has a colorful story about the Navy's "Seabees" (from "CB" for "Construction Battalion"), the equivalent of our combat engineers. Seabees made their legacy in World War II and built on it in Korea and Vietnam. They built runways, fire bases, command posts -- and did their share of fighting along the way. The Seabees even inspired a John Wayne movie ("The Fighting Seabees"). The article details that part of their legacy.

CAMP 93, Kuwait -- Gone these 23 years, John Wayne still inspires Navy Seabees.

The Seabees were the heroes of one of the most famous war movies: 1944's "The Fighting Seabees," starring Wayne and Susan Hayward. It is the story of how the military, after the fall of Wake Island, formed a construction battalion (hence the name Seabees, from CB) that could fight as well as build.

The film illustrates the unit's motto: Can do. Now the real Seabees have come here to play their role if there is a war with Iraq.

Thursday, February 20, 2003
Big News Day:
North Korean fighter crosses into South Korean airspace;
U.S. deploys combat troops to Philippines

The Associated Press reports that a North Korean fighter jet crossed into South Korean airspace this morning over a disputed portion of the Yellow Sea. South Korea scrambled its defense system. Ultimately, cool heads prevailed and the incident did not escalate. However, given my experience on the peninsula during some spy-sub incidents, I think the entire Korean peninsula remains tense right now. My gut instincts tell me this was a navigational error or mistake on the North Korean pilot's part. But it could have also been a probe by the North.

The North Korean MiG-19 jet fighter crossed a western maritime boundary over the Yellow Sea at 10:03 a.m. Thursday. The warplane flew nearly 8 miles into South Korea's airspace — all over water — before heading back into communist territory two minutes later.

A South Korea anti-aircraft missile unit based near the port of Incheon was given the order to be ready to fire. At the same time, two South Korean F-5E jets flew to intercept the intruder, the Defense Ministry said. Later, four more South Korean F-5E jets were deployed.

The first South Korean jets were 19 miles, or a two-minute flight, from the enemy fighter when it began retreating, said air force Col. Oh Sung-dae.

On this side of the globe, the New York Times reports that the Pentagon has decided to send 3,000 military personnel to conduct anti-terrorist operations in the Philippines. This is a significant development in America's war on terrorism, and I will be watching for more developments here. [I imagine Chris Baker at Half Baked will have some good analysis too, given his Marine Corps infantry experience.]

Unlike a six-month training mission that involved 1,300 American forces on Basilan Island last year, this will be a joint operation with the Philippine military that has no fixed deadline. It marks a significant escalation in the war against terror even as the United States builds up for a possible war against Iraq and continues to hunt for Al Qaeda and Taliban fighters in Afghanistan.

The plan calls for 750 American ground troops, including about 350 Special Operations forces, to conduct combat patrols in the jungles of Sulu Province with Philippine forces. In addition, 2,200 marines armed with Cobra attack helicopters and Harrier AV-8B attack planes will stand ready on ships offshore to act as a quick-response force, provide logistics and medical support.

A military assessment team, the vanguard of the larger combat force, is expected to arrive in the Philippines in the next few days, and the full American force could be conducting combat operations against the Islamic militant group Abu Sayyaf within a month, a Pentagon official said. The American forces will be led by Maj. Gen. Joseph Webber, the commander of marines in the Pacific.

John Walker Lindh begins sentence in California prison
American Talib's transfer raises questions for the cases of other 'enemy combatants'

After pleading guilty to charges of helping the Taliban in July 2002, John Walker Lindh began his prison sentence last month at the federal prison in Victorville, California. News of Lindh's imprisonment broke in a local California paper after federal officials tried (purportedly for Lindh's own safety) to keep his transfer and lock-up a secret. According to his plea bargain, Lindh will serve 20 years in federal prison for the two counts he pled guilty to. In return, he agreed to spill his guts to American defense and intelligence officials seeking to learn more about the Taliban and Al Qaeda organizations.

I was present in July 2002 for Mr. Lindh's plea bargain. While working in Washington last summer, I took off that Monday morning from work to attend what I thought was going to be an interesting 5th Amendment skirmish between Lindh's attorneys and the Assistant U.S. Attorneys on the case. The issue was a motion to suppress Lindh's statements made in military custody as a battlefield prisoner. After about 40 minutes of haggling over procedural details, James Brosnahan announced for his client "Your honor, we have a change in plea." The scene could have been lifted straight from a movie. Several reporters dashed out of the room to phone their editors with the story. And you could've heard a pin drop as Judge T.S. Ellis III interrogated Lindh about his plea and the underlying facts.

After the event, I wrote a short commentary for The Washington Times titled "The Seam Between Law and War" which analyzed this plea agreement. I felt then -- and still believe today -- that the government decided to cut its losses in the Lindh case to get what they could in the face of overwhelming legal opposition from Lindh’s crack defense team.

Weary from his months in combat and confinement, John Walker Lindh stood before U.S. District Judge T.S. Ellis III in green prison scrubs on Monday and pled guilty to two felony counts relating to his sojourn as a Taliban soldier in Afghanistan.

By pleading guilty, Lindh secured his own fate of 20 years behind bars – a light sentence given the possibility under his indictment. But more importantly, Lindh also contributed to the American war on terrorism in two very important ways.

First, Lindh agreed to cooperate fully with American law enforcement and intelligence agencies without the possibility that his sentence may be reduced. Though Lindh was a foot soldier, he did see much of the organization and leadership of the Taliban and al Qaeda. His knowledge of those organizations will be invaluable in building a sketch of those two organizations. This basic sketch will aid intelligence officers and prosecutors as they decide the fate of the detainees we now house at Guantanamo Bay.
* * *
Second, this plea bargain serves as damage control for the federal government. It ends a case that could have easily shattered its entire legal strategy in the war on terrorism. Lindh's defense team was very good. They objected to virtually every piece of evidence and made it very difficult for the federal prosecutors to build their case. Defense Attorney James Brosnahan was not about to roll over when the government cried "exigencies of war" or allow Lindh's initial treatment to go unnoticed. Whether these things happened in the fog of war or not was irrelevant – they were objections which could be made in the court of law.

Mr. Brosnahan and his legal team exploited the fact that Lindh's case fell on the seam between law and war. They highlighted the ways that American soldiers do not capture enemy combatants for the purpose of trying them in civilian courts. Lindh's legal team made great use of photos which showed him lying supine on a stretcher. This treatment would not be aberrational in war, but it shocked the conscience of many observers because it was such a departure from our norms of criminal justice. Mr. Brosnahan also objected to evidence gathered in the conduct of war, such as Lindh's weaponry, because they could not satisfy the peacetime standards of the Federal Rules of Evidence. All these objections made it abundantly clear that though Lindh may be guilty of crimes in war, he may not be convicted in a court of peace because of our high constitutional standards.

Indeed, if there were ever a case which screamed for a military commission, it was that of Lindh. His case exemplified the reasons why civilian courts are ill-equipped to deal with the exigencies of war. Instead of allowing for the realities of battlefield capture, the federal courts punished the prosecution for it. Similarly, the federal rules punished the prosecution for the need to immediately interrogate Lindh on the battlefield, and almost quashed his statements altogether. Military courts, designed by soldiers for soldiers, better understand the exigencies of war.

Sequel: Lindh's transfer to Victorville raises an interesting question: has the intelligence community exhausted his intelligence value? Presumably, they would not commit him to this facility until they had gotten all they could from him. Does this mean that he has no further intelligence value? If this conclusion is right, does that mean the same could eventually be true for Yaser Hamdi and Jose Padilla, who are being held as Taliban and Al Qaeda members by the Defense Department? A major part of the government's argument for keeping these men in DoD custody is that they have continuing intelligence value, and any contact with counsel, fellow inmates, the legal system, or the outside world might disturb their interrogations. (See Mobbs Declaration and Woolfolk Declaration) Is there some future point where these two men will also exhaust their intelligence value, and thus be released back to the criminal-justice system (or released entirely)?

WSJ: Marines prepare for chemical warfare

The Wall Street Journal has a great front-page article today on the ways the 7th Marine Regiment are training for chemical warfare in the Kuwaiti desert. The article describes the different drills the Marines go through, including their unmasking drill. For the uninitiated, most ground forces still employ a final fail-safe method for testing the air before giving the "all clear" message to soldiers wearing their gas masks. After getting a clean reading from all their chemical-surveillance gear, the Marines choose 2-3 men in a platoon and take away their weapons. While the platoon medic watches (with nerve-agent antidote in hand), the Marines gradually breathe in the outside air, testing it for contamination. In essence, these Marines become human "canaries", testing the air for their buddies the way canaries do for coal miners.

The harsh reality of chemical and biological warfare is that, despite all the sophisticated testing equipment the Pentagon has deployed to defend its troops, the only way to be sure the air is fit to breathe is for some brave -- and possibly unlucky -- soul to take his mask off.

And the harsh reality of military life is that the guy would have to be someone relatively expendable.

"You're basically the Marine who has to unmask first to make sure everyone else lives," says Cpl. Jose Valadez, a 23-year-old rifleman from Albuquerque, N.M. "You're the guinea pig."

This is an unpleasant but necessary reality of modern warfare, as the article says. However, the Marines have every possible safeguard to ensure the air is actually clean when the young Marines go through their "selective unmasking" drill. In fact, the Pentagon has gone so far as to buy chickens for the front-line units in Kuwait, the latter-day equivalent of the coal miners' canaries.

Meanwhile, the military has come up with an additional chemical-detection plan, this one more akin to the canaries miners once took into shafts to detect toxic air. Wednesday, division headquarters delivered to the regiment 43 chickens and a supply of feed. The chickens will be in cages in armored and other military vehicles. If any should drop dead crossing into Iraq, the Marines will know there might be something foul in the air. The division has even come up with a military designation for them: Poultry Chemical Confirmation Detectors, or PCCDs.

The 7th Marine Regiment's chem-bio specialists prefer Kuwaiti Field Chickens: KFC.

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