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Monday, June 30, 2003
'An army of builders'

Fareed Zakaria writes in Newsweek that America may need to reorient its military towards nation-building in the wake of our experiences in Afghanistan, Iraq, and maybe now Liberia. The point is one that I also made in my essay on nation-building in the Washington Monthly. Our 21st century military force has transformed itself to fight with more lethal precision and efficacy than any military in history. But it has not effectively transformed itself to deal with the challenges of nation-building. Zakaria writes:
Secretary of Defense Donald Rumsfeld is rightly proud of having pushed the military toward thinking about war in the 21st century. He has made it fight wars of the future, not the past—except in one crucial sense. America’s future conflicts are all likely to be short on war and long on nation-building.

Because of its massive advantages and extraordinary skill, the American military will win any future war quickly and easily. The regime it is fighting will collapse, leaving disorder and chaos in its wake. Within weeks the Army will no longer be engaged in war, but instead in policing, law and order, aid deliveries and political negotiations. And this will take not weeks but years.

Rumsfeld is wary of having the Pentagon involved in nation-building. He disbanded its tiny office of peacekeeping. Yet nation-building and peacekeeping are mostly what the armed forces have been doing for the past decade, as Dana Priest documents in her book “The Mission.” It’s what they are doing in Afghanistan and Iraq today.

Only not very well. American soldiers are the best in the world. But 22-year-old Marines are trained to fight, not to rebuild houses, manage group rivalries, adjudicate legal claims and help found civic groups. What we need in Iraq—and what we would quickly need in Liberia—are armies of engineers, aid workers, agronomists and, most important, political and legal experts to negotiate the myriad problems of peace. They would also know how to get help. Without aid from other countries and international organizations, America is simply not going to intervene in all the failing states around the world.
Thoughts... Secretary of Defense Donald Rumsfeld has pushed the military to realign its force structure in some small ways towards this end. The FY2005 Pentagon budget bill will include legislative provisions to shift manpower in key specialties (MP, Civil Affairs, engineers, etc) from the reserve forces to the active forces. That will help a great deal. But it's still not enough. We have invested an awful lot in the information architecture of way, and the precision firepower of war. We have not built human organizations capable of managing the complex operations after the war's completion. If the current trend continues, and America continues to deploy its military to failed states, we may need to build some type of constabulary force that's organized and equipped to deal with this precise situation. If we don't, we will continue to pound square combat units into round nation-building missions and suffer the consequences.

Also see this piece by Frederick Kagan in the current issue of the Weekly Standard. He writes, as I have before, that:
It is time to stop pretending that the United States can prosecute a war on terror, conduct peacekeeping operations in Iraq, Afghanistan, Kosovo, and Bosnia, and maintain the security of the homeland without a substantial increase in the size of the armed forces. General Shinseki, the recently retired Army chief of staff, warns us to "beware the 12-division strategy for a 10-division army"--and even he understates the problem. In truth, the armed forces need an increase in size of at least 25 percent.

Friday, June 27, 2003
A U.S. led permanent peacekeeping force?

Esther Schrader reports in the Los Angeles Times that this is exactly what Secretary of Defense Donald Rumsfeld has in mind. Such a force could be deployed in hotspots like East Timor, or as a follow-on force to places like Iraq.
The force would operate outside the auspices of the United Nations and NATO and would include thousands of U.S. Army troops trained for, and permanently assigned to, peacekeeping work.

Such an undertaking would represent a major reversal by the Bush administration, which came into office deeply opposed to tying up U.S. military forces in international peacekeeping operations.

The plan would probably be opposed by the Army, which has resisted efforts to have its troops drawn into peacekeeping duties.

There are other obstacles as well. Some analysts question how many nations would sign up for such a force if it were under the control of the United States, whose willingness to collaborate with other countries is highly suspect in many parts of the world.Query: Why doesn't the Army just do this on its own? Why not realign part of the force structure to build brigade-sized task forces of MPs, Civil Affairs, Engineers, Medical and other specialty units needed for peacekeeping? I think the multilateral component is useful for political reasons. But if we see a need for this kind of force, we ought to build it ourselves.

Coda to my note on Lawrence

Several learned readers wrote me with questions and critiques related to my thoughts on Lawrence. I'd like to address a couple of them, since I thought they were particularly good.

1) Doesn't a challenge need a plaintiff? Yes, it does. Various judicial doctrines require someone to actually be affected by a policy in order to sue the federal government. In this case, that means that someone who challenges the "don't ask, don't tell" policy needs to have been affected. I see two classes of potential plaintiffs:
- Gay men and women currently serving in the military who feel the current policy burdens their fundamental rights to intimate sexual relations, but who have not been detected or discharged yet.
- Gay men and women who served on active duty but did come to the attention of their superiors, either by statement, act or marriage. (See 10 U.S.C. Sec. 654 for its definition of what counts)
Unfortunately, there are no shortage of either group of plaintiffs. I knew a few gay soldiers and officers in the Army, and I imagine there were many more I did not know. The latter category includes several thousand men and women from the last decade alone, according to the Servicemember's Legal Defense Network. (See, e.g., the 7 military linguists discharged from the Defense Language Institute.)

2) The decision doesn't expressly overrule the military's policy -- how can it apply? The Court went further in Lawrence than it ever has before in the area of personal liberty, and specifically, sexual liberty. Justice Kennedy's opinion includes extremely broad language of the sort I remember reading in Brown v. Board of Education, or Miranda v. Arizona. This language will now form the foundation of any legal challenge to the policy, and lower courts will be bound by the parameters set forth by Justice Kennedy:
"Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
* * *
"The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their exis-tence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

"Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.
This is extremely broad language for the Court, and I think it's all but certain that it would help a plaintiff overturn the ban. Remember, this is not the kind of case where you would need to analogize between the facts of Lawrence and the facts of a challenge to the military's ban. Once the Court recognizes the fundamental right, the challenge may occur in all sorts of contextual contexts. Subsequent courts need only apply the "strict scrutiny" test to the law burdening the fundamental right in order to see if the law will stand. I'm no expert on the subject (for real expertise, see Eugene Volokh and Jack Balkin), but I'm pretty sure this decision is the death knell for the military's current policy.

3) What about discrimination in other contexts? Some lower courts have upheld decisions by adoption agencies and other administrative bodies to deny certain rights and privileges to gays because, inter alia, their conduct could be criminalized. I think that Lawrence also means the end of these laws as well. If you cannot criminalize this conduct anymore, and indeed, if such conduct is a fundamental right, then it follows that these kinds of policies can't stand either. However, there may be some more to these laws that I don't understand, so I defer to the real experts in the family law area.

4) What about colleges who don't want ROTC? I agree with Mark Kleiman here -- I think this is going to be the battleground on this issue in the next 5 years. Universities like UCLA currently accept the military's presence because federal law threatens the withholding of their federal research and financial money if they don't let them on. In many situations, e.g. UCLA and Berkeley, the requirement to allow the military on campus clashes with the university's policy against discrimination on the basis of sexual orientation. It's as if federal law required these colleges to allow a law firm on campus to recruit when that firm refused to hire minorities. I think it's likely that some universities will now challenge that federal law, known as the "Solomon Amendment", on the basis that it is unconstitutional per Lawrence. I'm not sure whether the underlying policy would need to be banned first, or whether the universities could challenge the Solomon Amendment beforehand. But I think it's a safe bet that we will see this issue resurface on college campuses in the near future.

That would be unfortunate, both for the universities and the military. Here, I speak not from a legal perspective but from that of an Army officer who graduated from UCLA with a liberal education. The institutions most likely to kick the military off campus are the institutions we most need represented in our military. When the Harvards and Berkeleys no longer produce military officers, the military suffers a great deal. In many ways, these officers raise the intellectual bar within the military, liberalizing it on the margins and adding something that would not otherwise be there. To be sure, West Point is a fine institution that produces amazing leaders. But they do not come to the Army with the same diversity of perspective and experience that officers from civilian universities do. That experience can be useful when building a cohesive unit to fight a war. But this diversity of experience critically important when dealing with complex nation-building missions like the one in Iraq right now. I hope that university leaders pursue a path of moderation on this policy, seeking the best answer for their institutions and for the military.

Thursday, June 26, 2003
What will the Supreme Court's decision mean for the military?

Today, the Supreme Court held that the Constitution protects the liberty of homosexual persons to engage in "intimate conduct" in accordance with their personal preferences. Writing for the majority, Justice Anthony Kennedy effectively demolished the Court's precedent from Bowers v. Hardwick, expressly overruling it and its holding that states could regulate the conduct of homosexual persons.

What does this mean for the current law banning gays in the military?

That ban exists as a matter of federal law -- 10 U.S.C. 654 -- and presumably can be overruled by a decision of the Supreme Court. I think that one of the first effects of Lawrence will be to trigger a challenge in U.S. District Court to the current policy banning gays in the military. That challenge will essentially cite Lawrence for the proposition that homosexual conduct is a fundamental right that the state cannot burden without some compelling interest -- and that the restrictions must be narrowly tailored to that compelling interest. The plaintiffs will argue that this policy (the "Don't ask, don't tell" policy) burdens the right of gay soldiers to engage in the conduct they want to, and that such a burden on a fundamental right is unconstitutional. Given the Court's holding today in Lawrence, I think that a lower court would almost certainly side with the plaintiffs.

The only possible savior for the military's ban will be the "national security" deference sometimes given to the Executive Branch and the military by the courts. In recent cases, such as challenges to President Bush's war on Iraq, the courts have expressly deferred to executive judgment on military matters, and left such issues to be decided by the political branches. Such "national security" deference was also invoked by the Supreme Court in Korematsu v. United States, where the Court upheld the detention of Japanese-Americans during World War II.

However, I don't think such deference will save the ban on gays in the ranks. The Court has held in religious freedom cases that the military can curtail certain personal freedoms, such as the right of Jews to wear certain religious garb. However, this is different. This ban places much more of a burden on the rights of gays than the military's uniform policies do, and this ban has a much more drastic effect (automatic discharge). After reading the Court's opinion in Lawrence, I think it's likely that this ban will be struck down as unconstitutional.

Read 'em yourself!

Slowly, like a glacier, our government is opening itself to the public. I've already praised the Pentagon's webpage as a great resource for reporters and citizens alike. Today I'd like to call your attention to the Supreme Court's site, which should get a lot of traffic today as the Court announces some major decisions.

The Court posts its recent opinions on this page, in PDF form, as they will look in the official U.S. Supreme Court case reporter.

Two other sites also deserve mention. The Legal Information Institute at Cornell has a great repository of Supreme Court cases, and I like the way they break up their cases by type of opinion (majority, concurrence, dissent, etc), and post them in both HTML and PDF format. Findlaw.Com is also a great resource for those who want to read these pieces of history themselves. Findlaw also has a great Constitution page that contains an annotated version of the Constitution -- in case you want to know the legal rulings behind a particular clause.

So when the Supreme Court announces its decisions (and maybe retirements) today, don't take my word for it -- see for yourself. And them read them for yourself. Our society claims to live by the rule of law. I think it's a great idea for everyone to understand how the way these laws are translated into living documents by the Supreme Court. There's no better way to do that than to read the Court's decisions.

Tuesday, June 24, 2003
Dick Gephardt and Harry Truman -- at odds with the Supreme Court?

Eugene Volokh and Glenn Reynolds (among others) have rightfully questioned an assertion by Democratic presidential contender Richard Gephardt that he would "do executive orders to overcome any wrong thing the Supreme Court does." The statement was made, presumably, to persuade Democratic audiences that Gephardt would fight for their interests despite the conservatives appointed to the Supreme Court and lower courts over the last few decades. Eugene and Glenn were right to point out that "you can't overturn a Constitutional decision by the Supreme Court with an executive order."

Today, Gephardt's campaign responded to The Note, an ABC News weblog.
"The fact that this question comes from libertarian law professors should speak for itself," spokesman Erik Smith wrote in an e-mail. "Dick Gephardt knows the law. The president can not overturn a Supreme Court decision. That's not what he said. He was simply expressing his commitment to diversity and his willingness to use the tools of his office to promote affirmative action programs to the fullest extent possible. It's important to remember that Harry Truman used an executive order to integrate the military."
Eugene responds, correctly I think, that Truman's executive order to desegrate the military came at a time when the Supreme Court was already moving in that direction. As a legal matter, the order also did not contravene any decisions of the Court, nor did it directly contradict anything passed by Congress. [Arguably, Congress did endorse a segregated military through its appropriations and oversight legislation, but it did not directly contradict President Truman's order once issued.]

My two cents... Harry Truman makes for an interesting choice of precedent for the Gephardt campaign. It is true that he issued Executive Order 9981, effectively ending segregation in the military, when Congress and the Supreme Court did not do so. This was an act of courage and principle for a President who had lots of both.

Harry Truman is also famous for another Executive Order -- one held to be unconstitutional by the Supreme Court. Executive Order No. 10340 (16 Fed. Reg. 3503) directed Secretary of Commerce Charles Sawyer to seize the Youngstown Co. steel mill after its labor force threatened a strike during the height of the Korean War. The mill owners and labor unions sued President Truman, claiming this order was an unconstitutional extension of the President's power to make laws, execute laws, and act as Commander-in-Chief under Art. II. The Supreme Court agreed, holding that President Truman did not have the power to act as he did. To this day, the "Steel Seizure Case" (especially Justice Jackson's concurrence) remains the Court's primary guidance to the Executive and Legislative branches on the boundaries of their power.
The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. 343 U.S. at 588
* * *
The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand. 343 U.S. at 589
There is great irony in the assertion by Dick Gephardt's campaign that he would follow the example of Harry Truman with respect to Executive Orders. Harry Truman did some great things unilaterally, such as his desegregation of the military and recognition of Israel, among others. But we can also learn what presidents cannot do from Truman's experience in the White House. I hope that Mr. Gephardt learns those lessons as well.

How much did the "green brief" help the Court decide Grutter?
And what lessons can we learn from the military on issues of race?

Yesterday's decision by the Supreme Court in Grutter v. Bollinger simultaneously clarified and muddied the waters for affirmative action in the United States. The Court issued two doctrinal issues, which may be very helpful for lawyers and educators in the future:

1) The Court will look at affirmative action programs with "strict scrutiny", and that such scrutiny is not always "strict in theory, fatal in fact." This issue was somewhat clear after the Court's decision in Adarand v. Pena, but not entirely so because of the muddy way the Bakke case (the last case on affirmative action in education) applied its legal test.

2) Diversity can be a compelling interest for institutions of higher education to pursue with their admissions policies. This is very important, because it blesses one of the two main goals of affirmative action. (The other one being to remedy past disadvantage) However, the decision did not say whether colleges can use diversity as a compelling interest for the hiring of professors or other staff. That may become a battleground in lower courts on this issue.

However, to pass strict scrutiny, a program must be "narrowly tailored" to a "compelling government interest." On this second prong, the Court found the U.Michigan undergraduate program unconstitutional (see Gratz v. Bollinger), and the law school's program constitutional. In her majority opinion in the law school case, Justice Sandra Day O'Connor appears to have relied heavily on claims by business and military leaders that affirmative action in colleges helps them recruit a diverse work force.
The Law School’s claim of a compelling interest is further bolstered by its amici, who point to the educational benefits that flow from student body diversity. In addition to the expert studies and reports entered into evidence at trial, numerous studies show that student body diversity promotes learning outcomes, and “better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.” Brief for American Educational Research Association et al. as Amici Curiae 3; see, e.g., W. Bowen & D. Bok, The Shape of the River (1998); Diversity Challenged: Evidence on the Impact of Affirmative Action (G. Orfield & M. Kurlaender eds. 2001); Compelling Interest: Examining the Evidence on Racial Dynamics in Colleges and Universities (M. Chang, D. Witt, J. Jones, & K. Hakuta eds. 2003).

These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. Brief for 3M et al. as Amici Curiae 5; Brief for General Motors Corp. as Amicus Curiae 3—4. What is more, high-ranking retired officers and civilian leaders of the United States military assert that, “[b]ased on [their] decades of experience,” a “highly qualified, racially diverse officer corps … is essential to the military’s ability to fulfill its principle mission to provide national security.” Brief for Julius W. Becton, Jr. et al. as Amici Curiae 27. The primary sources for the Nation’s officer corps are the service academies and the Reserve Officers Training Corps (ROTC), the latter comprising students already admitted to participating colleges and universities. Id., at 5. At present, “the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC used limited race-conscious recruiting and admissions policies.” Ibid. (emphasis in original). To fulfill its mission, the military “must be selective in admissions for training and education for the officer corps, and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse setting.” Id., at 29 (emphasis in original). We agree that “[i]t requires only a small step from this analysis to conclude that our country’s other most selective institutions must remain both diverse and selective.” Ibid.
Analysis: The amicus brief cited by the Court was called the "green brief" by many because it was submitted by a number of retired military officers, including Gen. Norman Schwarzkopf and others. (military = green) The brief was written by veteran Supreme Court litigator Carter G. Phillips. I found the brief to be exceptionally well written, and quite well grounded in facts. America's military is incredibly diverse, although a schism exists between the enlisted ranks and officers when it comes to racial and ethnic diversity. This has the potential to create social problems within the ranks. Recognizing this, America's military has conscientously recruited minorities for its leadership ranks (enlisted and officer), and developed programs to retain the best minority NCOs and officers as they rise through the ranks. Those programs implicitly depend on the presence of minority college graduates who can be recruited as officers.

However, I don't think Justice O'Connor's citation to the green brief in Grutter was necessarily right, for the following reasons:

1) It was odd to cite the green brief in the law school decision when the brief was clearly aimed at the undergraduate case. America's military takes some lawyers and professionals from graduate school, but not many. It recruits the vast majority of its officers from ROTC programs at public and private universities across the country. The next sizable chunk comes from the military academies. These schools, by virtue of their size, tend to rely on the sort of mechanical affirmative action programs the Court held unconstitutional in Gratz (the undergrad case). I understand that Justice O'Connor wanted to cite the most persuasive authority possible in her opinion upholding the law school's program, but the citation to the green brief seems misplaced to me.

2) The demise of U.Michigan's undergraduate program -- and all mechanical affirmative action programs like it -- will certainly create problems for the military and its recruitment of minority officers. As Eugene Volokh points out, large schools universally use such programs to sort through the thousands of applications they get each year. (I found this to be true when I wrote my thesis on affirmative action in the UC system in 1996) In the short term, colleges will have to figure out some other way to do affirmative action that looks more like the U.Michigan law school than the U.Michigan undergrad system. In the short term, that may result in less minority students being admitted to these universities, as we saw in California after the regents banned affirmative action in 1995 (and Prop. 209 passed in 1996). That, in turn, may result in less minority students for ROTC programs to recruit in colleges, particularly the top colleges like Berkeley, UCLA and Michigan. Ultimately, that's bad for the military, because such officers tend to bring a very important, liberalizing, intellectual component to the service.

3. Interestingly, the U.S. District Court for the District of Columbia held some of these programs to be unconstitutional in Saunders v. White last year because the Army had gotten so good at diversity that it no longer needed some affirmative action programs. Sociologists Charlie Moskos and John Butler wrote a great book on the military's successes in this area called All We Can Be: Black Leadership and Racial Integration the Army Way. The military has come a long way since the days when then-LT Colin Powell faced discrimination while stationed at Fort Benning, Georgia, in the early 1960s. Today's force has roughly reached parity, where the percentages of minority officers equals the proportion of available in the college graduate pool (with some variations by ethnic group). The senior NCO corps is an even greater success story, where minorities are significantly overrepresented in relation to their percentage of American society.

In many ways, I think the Army provides a good road map for the rest of society on matters of racial and ethnic diversity. Our military has taken race into account over the last 30 years to correct imbalances at all levels, and it has worked. It may now be time to remove some of those programs, or target them more effectively at groups that remain disenfranchised from the Army leadership (Latinos and Asians, for example). The ultimate irony of the military's success is that it has done well by providing economic and educational opportunities to young Americans who would not otherwise have such opportunity in our colleges and businesses. The military has even taken fire critics who say that such opportunities disproportionately draw too many minorities into the line of fire. This was what fueled Rep. Charlie Rangel's call for a national draft earlier in the year.

Maybe this decision will open more doors to minorities in education and other areas, so that they don't have to choose between a life of economic hardship and a life of soldiering -- but I doubt it. America's military still offers opportunities for adventure, training and service that our colleges do not. For the foreseeable future, I think that young men and women will join the military for things they can't get in college, and they will leave the service enriched by their experience.

More to follow...

Monday, June 23, 2003
U.S. government detains a third "enemy combatant"

The Washington Post reports tonight (and on tomorrow's front page) that the Bush Administration has transferred another man from Justice Department custody to that of the Defense Department -- labeling him an "enemy combatant." Ali S. Marri was originally arrested in Dec. 2001 and charged with lying to the FBI about contact with known terrorists. He was transferred yesterday from a federal jail in Illinois to a military brig at an undisclosed location. Marri has been deemed an "enemy combatant" by the President, joining Yasser Hamdi and Jose Padilla as alleged terrorists who have been so labeled by the Bush Administration.
Bush designated Marri an enemy combatant yesterday morning after federal prosecutors in Illinois dropped charges of false statements to the FBI and credit card fraud. Alice Fisher, deputy assistant attorney general for the Justice Department's criminal division, said prosecutors were confident they could have prevailed in court. She said they decided to forgo the charges in an effort to deter terrorist attacks.

She declined to elaborate. "We make these decisions on an individual case-by-case basis, taking national security into account," Fisher said.

Marri's lawyer, Lawrence Lustberg, said in an interview he plans to challenge the enemy combatant designation. He said the designation unfairly deprives Marri of legal rights, including access to counsel, and amounts to "end-running the legal system." Lustberg said he believes the administration acted because "we were raising powerful legal challenges" to the government's allegations of false statements.

"If the government had proof he was involved in terrorism, they would have charged him with that, but they didn't," Lustberg said. He said he had heard nothing from the government or his client to indicate that Marri acted as a U.S. facilitator for al Qaeda operatives or was a "sleeper" operative.

Law enforcement officials disclosed new details about Marri's alleged activities yesterday. They said al Qaeda assigned Marri, a graduate student in computer science at Bradley University, to explore ways to hack into the computer systems of U.S. banks. They also said his computer showed he had frequently visited Web sites dealing with the production of hydrogen cyanide, an extremely lethal gas that al Qaeda allegedly had plotted to use. Fisher said prosecutors do not believe Marri had been "specifically tasked" to plot a chemical or biological attack in the United States.
More to follow tomorrow...

Time to bring home the 3rd Infantry Division

The Evening Standard, a British newspaper, has a disturbing piece on the soldiers of B Company, 3-15 Infantry, 3rd Infantry Division, from the sands of Iraq. This piece does not mince words about what's going on with these men in the desert. Instead, it lays out their thoughts and feelings on war and peace in the language of a soldier -- raw, coarse and honest.
What they told me, in a series of extraordinary interviews, will make uncomfortable reading for US and British politicians and senior military staff desperate to prevent the liberation of Iraq turning into a quagmire of Vietnam proportions, where the behaviour of troops feeds the hatred of an occupied people.

Sergeant First Class John Meadows revealed the mindset that has led to hundreds of innocent Iraqi civilians being killed alongside fighters deliberately dressed in civilian clothes. "You can't distinguish between who's trying to kill you and who's not," he said. "Like, the only way to get through s*** like that was to concentrate on getting through it by killing as many people as you can, people you know are trying to kill you. Killing them first and getting home."

These GIs, from Bravo Company of the 3/15th US Infantry Division, are caught in an impossible situation. More than 40 of their number have been killed by hostile forces since 1 May - when President Bush declared major military operations were over - and the number of hit-and-run attacks is on the increase. They face a resentful civilian population and, hiding among it, a number of guerrilla fighters still loyal to the old regime. A lone Iraqi sniper nicknamed The Hunter is believed to have claimed his sixth American victim this week in a suburb of Baghdad.

The man, said to be a former member of the Republican Guard Special Forces, has developed a cult status among some Iraqis. One Baghdad resident, Assad al Amari, said: "He is fighting for Iraq on his own. There will be many more Americans killed because they cannot stop The Hunter. He will be given the protection of people who will let him use their homes for his shooting."

In this hostile atmosphere the men of Bravo Company are asked to maintain order, yet at the same time win hearts and minds. It is not a dilemma they feel able to resolve. They spoke to me - dressed in uniforms they have worn for the past six weeks - at their base in Fallujah. Here US troops killed 18 demonstrators at a pro-Saddam rally soon after the war and now face local fighters bent on revenge.

Their attitude to these dangers is summed up by Specialist (Corporal) Michael Richardson, 22. "There was no dilemma when it came to shooting people who were not in uniform, I just pulled the trigger. It was up close and personal the whole time, there wasn't a big distance. If they were there, they were enemy, whether in uniform or not. Some were, some weren't."
* * *
Cpl Richardson added: "That day nothing went with the training. There were females fighting; there were some that, when they saw you f****** coming, they'd just drop their s*** and try to give up; and some guys were shot and they'd play dead, and when you'd go by they'd reach for their weapons. That day it was just f****** everything. When we face women or injured that try to grab their weapons, we just finish them off. You've gotta, no choice."

Such is their level of hatred they preferred to kill rather than merely injure. Sgt Meadows, 34, said: "The worst thing is to shoot one of them, then go help him." Sergeant Adrian Pedro Quinones, 26, chipped in: "In that situation you're angry, you're raging. They'd just been shooting at my men - they were putting my guys in a casket and eight feet under, that's what they were trying to do.

"And now, they're laying there and I have to help them, I have a responsibility to ensure my men help them." Cpl Richardson said: "S***, I didn't help any of them. I wouldn't help the f******. There were some you let die. And there were some you double-tapped."

He held out his hand as if firing a gun and clucked his tongue twice. He said: "Once you'd reached the objective, and once you'd shot them and you're moving through, anything there, you shoot again. You didn't want any prisoners of war. You hate them so bad while you're fighting, and you're so terrified, you can't really convey the feeling, but you don't want them to live."
Analysis: I can't condemn these men for saying what they feel, or feeling what any honest infantryman would feel after fighting his way into a nation like Iraq. They have seen carnage I can't imagine, both in the Iraqis they killed and the Americans they watched die. After training in the desert for 9 months and fighting their way to Baghdad, it's natural that these men would feel the way they do.

Those feelings can only be exacerbated by the weeks of "peace" keeping since President Bush declared an "end" to combat on 1 May. American soldiers have continued to fight a shadowy war since 1 May, chasing ghosts of Saddam and taking fire from the shadows. The armored dash across the desert may be over, but the fighting is certainly not. Arguably, the current military situation does more psychological damage to soldiers than open combat, where lines are more clearly drawn and safety can be calculated as a function of distance from the enemy. On the streets of Baghdad, there is no safe place -- no refuge for the mind or body.

In time, these men's minds and bodies will probably heal, although they will never again be whole. Unfortunately, American policymakers do not have the luxury of time. Every day we let these men patrol Baghdad represents a significant operational and strategic risk for our occupation of Iraq. B/3-15 Infantry is ready to come home. Their soldiers and leaders are fatigued, and stretched to the breaking point. It's a testament to American society and our Army's training that these men have not broken yet; that they have not committed some unspeakable act against the Iraqis for the world to watch on CNN.

Bottom Line: It's time to bring these men home. They've accomplished their mission, fighting what Max Boot called in the latest Foreign Affairs issue "one of the signal achievements in military history." But now they need to be relieved in place -- either by active forces, reservists, or our NATO allies. Studies of war have shown that fighting units need to be replaced after a period of days in contact -- no matter how elite, how well-trained, or how well-disciplined. (See, e.g., Acts of War by Richard Holmes and On Killing by David Grossman.) Morale, cohesion, and effectiveness simply break down after prolonged exposure to combat. This is true of low-intensity and high-intensity combat.

At some point, the 3rd Infantry Division will become combat ineffective as a result of stress and prolonged exposure to war. This is the human dimension of war, and it's often neglected by policymakers who would like for war to be something sterile fought by machines. We must recognize the human reality of war and bring these men home.

An American warrior

Americans are not warlike by nature, but our generals have always captivated us. From Washington to Jackson to Pershing to Patton to Schwartzkopf, our military has been led by colorful characters who, in turn, have inspired public pride in the military. (Others, such as McClellan and Westmoreland, have inspired contempt, showing that Americans can also show disdain for their generals when they want to.) Gen. Tommy Franks, commander of Central Command, fits squarely in this former category. Today, the Washington Post profiles the man who has led American forces to military victory in Afghanistan and Iraq.
The arc of his four-star career -- after the Army sent him back for his college degree -- took Franks to commands around the world. Those who know him have enjoyed the warm friendship of a guy who likes to give bear hugs, can shed tears over wounded soldiers, break into a country tune over a margarita, puff a cigar while strolling through one of Saddam's palaces with a pistol stuck in his belt, or pose for a snapshot after a swim in a Texas lake with fellow officers -- on horseback, and stark naked except for a Stetson.

They also glimpsed other traits that helped take him to the top -- personal courage, aggressiveness, determination to do the right thing, serious smarts.

Retired Gen. George Crocker recalls Franks as a captain in Germany in the 1970s when the Army was "rife with drugs. There were major race riots, a battalion commander was shot on the parade field by his own men."

Franks had taken command of an artillery battery and was chatting with the first sergeant when they heard a fight break out upstairs, Crocker recounts. The sergeant advised letting it go because it was "just the alkies and the druggies fighting."

"Not in my battery," Franks proclaimed, grabbing a length of steel pipe and charging upstairs to break up the fight and restore order.

"He was never afraid to take risks," Haynes, the former personal aide, recalls. "When we went to Afghanistan a few times early on, it was risky, [but] he'd visit the troops just to say, 'Thanks, be proud of who you are. . . . I'm going to come around and hug every one of you.' There'd be 1,000 people there, it would be 112 degrees in some airplane hangar and I could see he was just beat, but he really enjoyed doing that."

Retired Gen. Crosbie Saint recalls how Franks figured ways to keep artillery near enough to rapidly moving battle lines to always provide fire support "in 15 or 20 seconds." Franks also found a way to hit moving targets such as enemy tanks with artillery fired from far away.

"He's the kind of guy," Saint says, "if you say you want to move a mountain, he'll say, 'How far do you want to move it?' "

"He leads from up front," says retired Gen. John H. Tilelli Jr., commander of the 1st Cavalry Division during the 1991 Gulf War when Franks was his key assistant division commander. "He's not afraid . . . . When you think of senior people, they don't have to put themselves in harm's way -- but he goes where the action is."
Thoughts... The American military has radically changed itself over the last 30 years since Vietnam. (See Prodigal Soldiers by James Kitfield for a great history of these changes.) It has become a more educated, professional, intellectual, and well-managed force. Its volunteer officers and senior enlisted soldiers are extremely good at what they do, and the military devotes an enormous about of resources to training/educating them to become even better. Tommy Franks had the raw material as a young lieutenant and captain to become a great leader. But he would not have become one if not for the mentoring, training and education he got along the way. When I read his profile, I was impressed by the way the Army plucked him like a diamond in the rough -- schooled and polished him -- and eventually produced a warfighter who could lead hundreds of thousands.

Looking for legal commentary?

The decisions handed down today by the Supreme Court are obviously what most newspapers will lead with tomorrow. I have some thoughts on the Michigan case, but I'll reserve them for later. Instead, I recommend turning to the following pages for intelligent commentary on these cases:
- The Volokh Conspiracy: run by Eugene Volokh, a constitutional law expert at UCLA Law School, with guest commentary from several other law professors

- Balkinization: run by Yale Law Professor Jack Balkin, who usually has a perspective no one else has thought of on legal subjects.

- Instapundit: In addition to being the capo di tutti capo of bloggers, Glenn Reynolds is a law professor.

- SCOTUS Blog: Run by a boutique appellate practice in DC that makes its living following the Supreme Court and arguing cases there.

- Actual Malice: written by a New York City media attorney, this blog will probably have great commentary on the Court's library/porn decision today.
As always, copies of the decisions are available on the Supreme Court's site and the Findlaw site, in PDF form. I will read the decisions later today and offer my thoughts afterwards. More to follow...

Sunday, June 22, 2003
Foreign fighters complicate the mix in Iraq

The New York Times reported on Sunday about a very ominous development in Iraq -- the presence of foreign guerillas in the midst of American forces. This is an extremely significant development, because the presence of foreigners tends to signify two possibilities. First, it signals that a transnational movement of young armed men is taking place -- and that they're migrating towards Iraq. Second, it may indicate a resurgence of Al Qaeda in Iraq. After all, Al Qaeda began as a transnational guerilla force of "Afghan Arabs" who successfully fought the Soviets in Afghanistan. The influx of foreign Arab guerillas to Iraq seems eerily familiar, given the institutional history of Al Qaeda.
Military officials say that American troops in Iraq have had to contend with Syrians, Saudis, Yemenis, Algerians, Lebanese and even Chechens.

Many of these fighters took up arms against the United States during the American thrust to Baghdad. A significant number remain, and a new effort is under way to lure more to Iraq to join the fight against the Americans, officials say.

"You have got Baath Party and regime loyalists west and northeast of the city who are calling buddies in foreign countries and getting fighters to come across the border," Maj. Gen. William Webster, deputy commander of the allied land command, said in an interview. "They are also rounding up those who are already here and issuing them weapons."

New evidence about the role of foreign fighters, including passports and other documents, was gathered after the American air and ground attack last week on a militant camp at Rawa, about 150 miles northwest of Baghdad. According to American military commanders, two wounded foreigners were also captured — a Saudi and a Syrian.

American officials said the two captives had told them that they were offered money to come to Iraq and kill American soldiers.

Foreign fighters played an important role during the war. Busloads of fighters drove in from Syria and fought soldiers from the Army's Third Infantry Division who pushed into the center of Baghdad. American soldiers confirmed their nationality by retrieving passports from bodies of dead fighters.
Analysis: This is going to become a major issue for America in the coming weeks and months. We must quarantine Iraq from the outside influences that may seek to push it down a particular path -- whether it's Shiite or Sunni fundamentalism, or some other plan. If nothing else, we must do so because these foreigners bring with them weapons and training that subsequently get used against our own soldiers. Given a finite amount of men and materiel inside Iraq, we will eventually root out the guerillas now harassing our forces. But as we saw in Vietnam, it's impossible to conduct a counter-insurgency campaign when the insurgents continue to multiply and resupply. These outsiders appear to be fulfilling that function inside Iraq, and it must be stopped.

Al Qaeda operative pleads guilty to charges
But what did the U.S. use as leverage to get the guilty plea?

By now, most have heard about the plea bargain by Al Qaeda operative Iyman Faris, a 34-year-old naturalized citizen from Ohio who was planning to bomb the Brooklyn Bridge. Apparently, detained-Al Qaeda leader Khalid Sheikh Mohammed fingered Mr. Faris for his inchoate plan to destroy the landmark bridge. (Mohammed is being held at an undisclosed location by American intelligence officers who, presumably, are interrogating him for every detail he knows about Al Qaeda.)
Prosecutors said Mr. Faris traveled in Afghanistan and Pakistan beginning in 2000, meeting with Osama bin Laden and working with one of his top lieutenants, Khalid Shaikh Mohammed, to help organize and finance jihad causes. After returning to the United States in late 2002, officials said, he began casing the Brooklyn Bridge and discussing via coded messages with Qaeda leaders ways of using blowtorches to sever the suspension cables.

The plotting continued through March, as Mr. Faris sent coded messages to Qaeda operatives in Pakistan. One such message said that "the weather is too hot." Officials said that meant that Mr. Faris feared that the plot was unlikely to succeed — apparently because of security and the bridge's structure — and should be postponed. He was arrested soon after, although officials would not discuss the circumstances of his capture.
Analysis: I was not surprised to see this news story hit the press. Our security agencies (CIA, FBI, DoD, et al) have done a lot to take down Al Qaeda and its ability to operate as a global terror network. However, I was surprised to see the method used by federal prosecutors to obtain this plea bargain:
The allegations against Mr. Faris bear similarities to the case against José Padilla, a Chicago man who last year was accused of plotting with Al Qaeda to plant a "dirty bomb" and who has been imprisoned in a military brig as an enemy combatant.

Prosecutors discussed the idea of declaring Mr. Faris an enemy combatant as well, and that may have influenced his decision to admit guilt to avoid the prospect of indefinite detention, according to a lawyer who demanded anonymity.

Mr. Faris has indicated that he might be willing to cooperate with authorities, a law enforcement official said.
Now, I'm no softie when it comes to dealing with terrorists, criminals, or enemy combatants -- however you may categorize these men. But this looks to me like an abuse of the government's power to designate someone as an "enemy combatant." Presumably, such a label should only apply in the obvious cases. An enemy combatant should be like obscenity as defined by the Supreme Court -- I'll know it when I see it. There shouldn't be a case where someone can be both a criminal and a combatant. If that's the case, then we ought to apply the presumptions in favor of the defendant and give them the constitutional process they're due. In this case, we appear to have held this label out there as a very big stick -- in order to induce Mr. Faris to take the measly carrot of criminal justice instead of the justice that Mr. Padilla now faces.

On the whole, I think this move delegitimizes most of the arguments made by the government to keep men like Yasser Hamdi and Jose Padilla in government custody as enemy combatants -- without communication to counsel or the outside world. These men are probably dangerous; I think they probably did what the government thinks they did. The government argues that enemy combatants like Hamdi and Padilla are unequivocal enemies of the United States. Their conduct has made them so, and we should give them no quarter (legally speaking). Most importantly, the government argues that it cannot get intelligence out of people that are given constitutional rights, because there are practical difficulties associated with interrogating someone who has assistance of counsel. (I can certainly see this point)

Yet, if that's true, why would we have accepted the plea bargains from Mr. Faris and from the "Lackawanna Six"? As Al Qaeda operatives inside the United States, these men may have some of the most actionable, critical intelligence available to our security community. Yet, we have accepted their plea bargains, given them counsel, and sent them to federal prison -- quite unlike Mr. Hamdi and Mr. Padilla.

Friday, June 20, 2003
Light blogging... I'm working on several large projects now, so blogging has been light this week. Intel Dump will have a digest on Sunday of several of this week's stories, including the Al Qaeda member's plea bargain in New York City and continuing stories in Iraq.

Wednesday, June 18, 2003
How best to end a war?

Slate's Fred Kaplan has a thought provoking piece on how the Army has struggled over the last several weeks to define "victory" in Iraq. The "end" of the war now looks increasingly uncertain, as guerilla forces clash with American units on a daily basis and American units mount massive operations such as Operation Peninsula Strike.
Huba Wass de Czege (pronounced HOO-ba VOSS de-say-ga) is a retired U.S. Army brigadier general who has given some thought to these matters lately. To the extent the Army has evolved into a more agile fighting force, Wass de Czege has been a major influence: In the early 1980s, he rewrote the Army's official field manual on operations, replacing the old book's doctrine of attrition and firepower with the ancient but forgotten concepts of maneuver warfare, deep-strike offensives, and combined air-land battle. He then founded the Army's School for Advanced Military Studies, an elite, yearlong postgrad program, to inculcate the new concepts in the next generation's officer corps.

Last year, Wass de Czege observed two big official war games, the Army's "Vigilant Warrior" and the Air Force's "Global Engagement." Shortly afterward, he wrote and privately circulated a memo, called "02 Wargaming Insights," that Donald Rumsfeld would have done well to read. (The general recently sent me a copy.)

These sorts of war games "tend to devote more attention to successful campaign-beginnings than to successful conclusions," he wrote. "War games usually conclude when victory seems inevitable to us (not necessarily to the enemy), at about the point operational superiority has been achieved and tactical control of strategically significant forces and places appears to be a matter of time."

Winning a war, he noted, doesn't mean simply defeating the enemy on the battlefield. It means achieving the strategic goals for which we've gone to war in the first place. In both war games, he wrote, the question of how to achieve those strategic goals couldn't be answered because the war game ended too soon.

This is unfortunate, he went on, because, important though it is to understand the early stages of a military campaign, "it is just as important to know how to follow through to the resolution of such conflicts." He added that, if the game managers did follow through the next time they play, they would learn that they—and, by extension, U.S. military commanders generally—have underestimated "the difficulties of 'regime change' and the magnitude of the effort required to achieve strategic objectives."
I'll have some more on this later in the week. I think there are important analytic points to be made about what "victory" means, how we quantify such a thing, and whether we can achieve such a thing when our strategic goals are so amorphous and ill-defined. Until then, ask yourself this question: What are we really trying to do in Iraq? If you can't answer that question, how can you possibly define when you've achieved the goal?

Tuesday, June 17, 2003
The crucible of PFC Lynch

Tuesday's Washington Post has a dramatic account of PFC Jessica Lynch's convoy mission, ambush, capture and subsequent rescue. The Post pieced the account together from interviews with Lynch's comrades in the 507th Maintenance Company, Iraqis in Nasiryah, and others. All the big papers and networks are in the hunt for this story, and I imagine that more details will leak out over the coming days and weeks. Eventually, I hope that PFC Lynch will tell her own story. But more importantly, I hope she recovers physically and mentally so that she may continue to serve and live her life as an American soldier.

U.S. stands shoulder-to-shoulder with 'Old Europe' in Afghanistan

This morning's Wall Street Journal (subscription required) also has a great piece on the work being done by American, French and German forces in Afghanistan. Despite the acrimony between Washington, Paris and Berlin, commanders on the ground have made peace between themselves -- and worked together over the last 2 years to get the job done. Indeed, according to one American commander, the mission simply could not get done without French and German support.
The U.S., despite peerless military might, can't tame an unruly world without its less-muscular and, in recent months, contrarian allies. From the Balkans to Afghanistan and the Persian Gulf, the U.S. military maintains formidable garrisons but neither wants nor is able to tackle the laborious tasks of nation-building alone.

"We still have French fries here," not freedom fries, says Lt. Col. Kevin McDonnell, an American Special Forces officer who heads the Kabul Military Training Center, set up last year to train a new Afghan army.
* * *
The limits of America's freedom to reorder alliances and of its military muscle are starkly evident in Afghanistan. America's most important partners in the international effort to restore some order and prevent Afghanistan from again becoming a haven for terrorists are Germany and France, two vociferous opponents of the Iraq war.

Col. McDonnell says that when he first arrived from Fort Bragg, N.C., he had no money to pay the salaries of Afghan recruits. France, responsible for officer training at the center, stepped in to cover a monthly payroll of around $22,000.

The swift victory against the Taliban 18 months ago has been followed by a painfully slow process of piecing together the fractured country. In a brutal reminder of the perils of postwar rebuilding, a suicide car bomb in Kabul on June 7 killed four German soldiers and seriously wounded seven others.
* * *
The ISAF includes personnel from 29 nations, but the vast bulk of the manpower comes from European countries at odds with the U.S. over Iraq. Germany has the biggest contingent, with around 2,300 soldiers. France has 500 troops in the ISAF as well as 50 soldiers helping Col. McDonnell at the Kabul Military Training Center. In a speech last week on security cooperation, Mr. Rumsfeld made no mention of the German or French roles, hailing instead a modest Afghanistan deployment by Romania. Former communist states of "new Europe" make only a token contribution to Kabul peacekeeping: Ten countries from Albania to Estonia have rustled up a total of around 170 men.

The U.S. has about 9,000 soldiers in Afghanistan but eschews street patrols and other peacekeeping tasks -- duties Washington regards as vital for Afghanistan but burdensome, low-tech distractions for U.S. combat forces. American troops hunt, sporadically, for Osama bin Laden, and stage quick raids into remote areas infested with militants.
Analysis: Hmmm... maybe this is the blueprint we should use for Iraq? Our allies are really good at this low-tech, soft, humanistic nation-building stuff. That could owe to their colonial past, or progressive governments, or welfare-state experience, or some other factors. I also think it's because these countries are willing to assume operational risk in peacekeeping, by putting soldiers in harm's way to do critical foot patrols and person-to-person interaction. Whatever the reason, these guys are good. And we should take advantage of their skill when/where we can to achieve American strategic objectives, regardless of bad blood between America and 'old Europe.'

McCain queries Boeing regarding USAF tanker lease

Sen. John McCain tried hard over the last 2 years to block a lucrative $15 billion deal between Boeing and the U.S. Air Force for the lease of 100 aircraft to be used as in-flight refuelers. The Pentagon overruled Sen. McCain's objections, but it appears from this morning's Wall Street Journal (subscription required) that the fight is not over.
On Friday, Sen. McCain, an Arizona Republican who chairs the Senate Committee on Commerce, Science and Transportation, sent a two-page letter to Boeing Chairman and Chief Executive Philip Condit asking for related documents. The request for information included all communications between Boeing executives and government officials at the Pentagon, White House and the Office of Management and Budget related to the lease. Also being sought are all records of sales or leases between Boeing and commercial customers, specifically Continental Airlines and FedEx Corp., as well as foreign governments, specifically Uzbekistan.

Boeing spokesman Walt Rice confirmed the company received the letter and will respond accordingly.

Last month, the Pentagon said it had reached a $16 billion arrangement with Chicago-based Boeing to lease 100 specially modified 767 jetliners to use as airborne refueling tankers. The Air Force had negotiated the first-of-its-kind lease for nearly two years, contending it would allow the service to get the aircraft sooner than if they were purchased outright. Air Force officials have said the military's existing tanker fleet is decades old and have taken on more work in recent years with military operations overseas.
Analysis: There are good arguments on both sides here. Boeing wants to sell its planes and make a reasonable profit; there's nothing wrong with that. The Air Force wants a lease deal because it avoids some up-front capital costs and enables them to more easily replace these planes at the end of their service life. On the other hand, it looks like war profiteering, and that's what Sen. McCain is steamed about. We should be wary of the Bush Administration using its current political capital to ram things through Congress, especially in the area of defense procurement. Our sons and daughters in the field deserve the best gear money can buy. But we must make sure we're spending our money wisely, so that we don't throw money away that could have gone to buy our troops the things they really need.

Monday, June 16, 2003
Key military reformer set to retire

Franklin "Chuck" Spinney, a legend in the Pentagon who worked closely with the late-Col. John Boyd to reform the Pentagon in the 1970s and 1980s, has decided to retire. Spinney started as an Air Force officer whose maverick style and brilliance caught the eye of Boyd. He eventually provided a great deal of the intellectual support for Boyd's ideas, and fought as one of his most loyal foot soldiers ("Acolytes", to use Robert Coram's word) in the movement to reform the way America's military worked after Vietnam. (Among other things, Spinney has been instrumental in pushing the ideas of 4th Generation Warfare which have revolutionized thinking about post-state/non-state/trans-state threats.)

Since leaving the Air Force, Mr. Spinney has worked in the Pentagon for one of the top Air Force offices for testing and procurement. I don't know Mr. Spinney, except through his writing, so I can't speculate intelligently as to why he decided now was the time to retire. Certainly, age had something to do with it. This is a man who's ably served his country for three decades. Whatever the case, America should thank him for his service. I hope Mr. Spinney continues his regular "Blaster" updates, and that he plays an active role in mentoring young military officers and thinkers who might assume his role in the next generation.

Saturday, June 14, 2003
Soldiers face their new mission in Iraq

Sunday's New York Times has a well written front-page story on the 1st Brigade, 3rd Infantry Division, whose soldiers have served in Kuwait and Iraq for nearly a year. As you might expect, these soldiers and their leaders are tired -- exhausted after training in the desert, fighting their way to Baghdad, and being yanked off the planes at the last minute to stay a little longer. Yet, for the most part, they now seem to accept their mission. The road home will be a little longer, but these men and women feel they have to stay in order to get the job done right.
The First Brigade received orders in May to prepare to go home via Kuwait. Late last month, Maj. Mark B. Nordstrom, the brigade chaplain, and Capt. Kevin A. Bayles, the brigade doctor, gave their briefings to soldiers about the emotional and physical adjustments they were likely to experience.

Their replacements, the First Armored Division, had arrived and had begun to take over their patrols.

Then a new order came. The First Brigade would stay to act as a reserve in case Baghdad tumbled back into anarchy; its sister brigade, the Second, went to quell pockets of fighters in Falluja, to the west. Only the Third Brigade was going home, along with unneeded units, like the artillery battalions and the division's band.

Back in Georgia, where the Third Infantry Division is based at Fort Stewart and Fort Benning, families had already made "Welcome Home" banners. They were told to stop sending mail on May 21, so most soldiers are not receiving letters or packages anymore.

Major Nordstrom described the last two weeks as "the hardest weeks of my career as a chaplain." He drew a distinction between morale and "fighting morale." He said he meant that the soldiers would still do their jobs, but that they were not happy about it.

Several soldiers have received psychological counseling after showing signs of combat stress: nightmares, sleeplessness, edginess, outbursts of anger and what the chaplain called "intrusive thoughts."

"We have guys whose wives are sick, but not sick enough for them to get emergency leave; guys whose wives are cheating on them — they've heard through the grapevine," Major Nordstrom said. "And you know, the hardest thing is we don't have anything to offer them."

The mission remains as important as the battles that preceded it, for if some order is not brought to Iraq and the economy restored to a functioning state, the war these men fought so hard to win may seem to have been in vain.
One infantryman was particularly honest about his situation, and his desire to go home.
"You call Donald Rumsfeld and tell him our sorry asses are ready to go home," Pfc. Matthew C. O'Dell, an infantryman in Sergeant Betancourt's platoon, said as he stood guard on Tuesday. "Tell him to come spend a night in our building."
After what he's been through, I can hardly blame him. It's time to rotate these soldiers home; to replace them with fresh troops from the National Guard or NATO who can pick up where 3ID left off.

Friday, June 13, 2003
A fallen American hero

Earlier this week, an officer I served with e-mailed me from Iraq to tell me about a memorial service he attended for Pvt. Jesse Halling of the 401st Military Police Company from Fort Hood. My old unit, the 4th MP Company, sits next to the 401st MP Company on Fort Hood. We used to do PT with the MPs from that unit, or challenge them to contests in sports or marksmanship. My friend's words from the desert really struck me; much more so than accounts of other deaths from the war:
". . . 720th MP BN had an MP killed at a local police station in an RPG & small arms attack. Memorial service was last night. Well done but do not want to do that again. Never seen so many officers, NCOs, & soldiers crying and hugging in my life. The kid was only 19. Way too young. Truly died a hero as he was trying to repel an attack and was in front of others who came out of the MP station to return fire."
Today, the Washington Post reports on the gallant actions of Pvt. Jesse Halling, who died while protecting his buddies. What strikes me is that Pvt. Halling acted reflexively to an enormously dangerous situation, despite his youth and inexperience. He was just 19 -- little more than a year out of high school, with only basic training under his belt -- not some crusty old infantry sergeant. Yet he knew instinctively what had to be done, and he did it in the face of enemy fire to save his buddies. Pvt. Halling was truly one of America's finest sons, and I mourn his loss.
Around 2 a.m., the attack started with sporadic but accurate small-arms fire. Pop. Then silence. Then another crack of rifle. Then nothing but dogs howling.
* * *
"We were at the police station and there was a call to respond and Halling's team went out from the station and immediately started taking small-arms fire," said Staff Sgt. James Ferguson, the leader of Halling's squad.

At first, rifle shots from the Iraqis were focused on the operations center, which was protected by a wall of sand barricades and concertina wire, as well as an M2 Bradley Fighting Vehicle. Then the CMOC was targeted. The Iraqi attackers seemed to be drawing the soldiers onto the street. "And it wasn't sporadic anymore," Ferguson said.

Suddenly, the Iraqis fired rocket-propelled grenades, lethal missiles designed to splinter into shrapnel fragments after detonation. Their aim was true, the soldiers said; the assailants knew what they were doing.

As Halling swung out onto the street, "it was a full-out firefight from both sides," Ferguson said. Tracer fire, sound of big guns emptying, lights and screaming.

Halling was the gunner in a three-man team of MPs, meaning he sat up in the turret of the Humvee, while the driver, Pfc. Ronald Glass, and the team leader, Sgt. Angel Cedeño, sat below. Glass said that Halling was hammering away with his .50-caliber machine gun. Big gouges remain along the rooftops hit by Halling's fire.

Just north of the CMOC, Halling was reloading his machine gun and squeezing off rounds from his M-16 rifle. All the while, he was telling Cedeño and Glass where targets were, and also telling them to watch out, to get down, Glass recalled.

Cedeño told the other soldiers later that Halling, by remaining at his post, had saved his life. He never came down from the turret, seeking shelter in the relative protection of the Humvee, as many soldiers might have done.

From one of the roofs, a rocket-propelled grenade struck Halling's Humvee. The round detonated, and a hot chunk of shrapnel tore through Halling's jaw.

Someone was shouting: "He's hit! He's hit!"

It was an ugly, mortal wound. Halling was treated in the field. A soldier from the CMOC said he thought Halling was choking on his own blood from the face wound. He was helicoptered to a hospital but did not make it.

"He never gave up; that's what you should put in the paper," Ferguson said.
The paper reported that Pvt. Halling was posthumously promoted to Private First Class and awarded the Purple Heart. He has also been recommended by his commander for the Silver Star, America's third-highest award for valor under fire. The men in Pvt. Halling's unit have returned to their mission, although they remain shaken by the loss of their comrade.

Thursday, June 12, 2003
What is 'Operation Peninsula Strike'?

American commanders launched the largest operation in Iraq since the fall of Hussein's regime this week, according to the New York Times, Los Angeles Times and Washington Post. The operation focused on Thuluya, a town thought to provide sanctuary for former-Iraqi soldiers still loyal to the regime. It appears that between 5,000 and 10,000 soldiers have been committed to the operation -- or two brigades plus supporting aircraft and artillery. According to the Los Angeles Times, the mission resembled a massive "cordon and search" operation, wherein American soldiers secured a large area and methodically searched every inch of it for paramilitaries and terrorists who might attack them in the future.
Dubbed "Peninsula Strike," it was the largest operation by U.S. occupation troops since the end of major combat activities in Iraq in late April. Air, ground and riverboat patrols isolated a mainly Sunni Muslim triangle northwest of Baghdad in the wake of what the military is calling "organized" attacks on U.S. soldiers in the past two weeks.

U.S. officials say the country is under control but that pockets of resistance remain. One U.S. spokesman, Army Col. Rick Thomas, characterized the pro-Hussein elements as increasingly desperate because they "have no future anywhere I promise you they have no future inside Iraq."

American officials did not say which senior Baath Party officials might be hiding in the search area, centered on the Tigris River town of Thuluya, but indicated that they would be sifting through the 397 suspects to see if any are wanted by the U.S. occupation administration.

At least one group of Iraqis engaged U.S. forces at Balad, about 50 miles north of Baghdad, and then tried to escape on a Tigris River boat, Thomas said, but they were tracked down from the air and captured.

Officials described two major phases of the operation that began Tuesday. The first involved moving soldiers and equipment into position to cut off a triangle along the Tigris. In the second, they launched raids using assault teams, ground attack squads, river patrol boats and Iraqi police against specific targets inside the area. Checkpoints and patrols were maintained over the past two days to capture anyone trying to flee.
Analysis: It appears from here that this operation was done in the classic way. Artillery and airpower destroyed key enemy locations and suppressed others while heavily armed infantry and armor formations secured the area. With the area secure, specialty teams of infantry and military police then move in to search every dwelling, shop, and crevice they can find -- and then some. The process is slow and methodical; these teams are extremely vulnerable while conducting their sweep. The goal is to find any enemy troops or munitions, and there are a myriad of places those things can be hidden.

Why now? This appears to be a response to increasingly violent attacks on American soldiers which have claimed a steady trickle of lives since the war's end. But it's more than that. American commanders now appear to have enough troops in place where they can simultaneously control Iraq and execute missions like this. When America just had enough to patrol the streets, we were on defense. But now that we have enough boots on the ground in Iraq, it appears that we're going on offense to find and kill the last remnants of Hussein's army. This is an extremely important phase of the war, and its import should not be minimized. It's also very dangerous. I think it's safe to bet that we will conduct missions like this in most major population centers of Iraq, because we need to ferret out resistance around the country -- not just in places like Tikrit. More to follow...

Can the Democrats do defense in '04?

Noah Shachtman thinks they can, and he has some ideas for how the Democratic Party can seize the offensive on national security issues for the next presidential election. The Washington Monthly and American Prospect have made this their issue as well, running sizable pieces in several of their recent issues on the subject. The problems are there; these pieces suggest some plausible solutions. It's now up to the Democrats to nominate the right person to carry their mantle of leadership -- and raise these issues in the national debate. [For the record: I'm not affiliated with either political party; I'd like to see these issues hashed out because I think the best solutions will emerge from a good fight.]

Hawks run amok?

Dan Drezner rightly points out that the Bush Administration -- and Pentagon in particular -- has a tremendous about of discipline when it comes to managing media leaks and staying "on message." Yet, in the last few weeks, there have been some serious breaches of that discipline. First has been Paul Wolfowitz' tussles with the media over WMD in Iraq and the ties between Al Qaeda, Iraq, and terrorism over the last decade. (The first has been somewhat discredited; the latter tussle remains an issue) Next, Dan points us to a press conference where Undersecretary of Defense for Policy Doug Feith tried to re-spin the WMD story, with dubious success.

Today's breach: USA Today reports that a senior Pentagon official admits to poor predictive analysis before the war on Iraq for the post-war reconstruction/nation-building/humanitarian mission that everyone knew would follow. This isn't quite the same as saying "we botched it;" it's more akin to LTG William Wallace saying during the war that the enemy they were fighting was "a bit" different than the one they wargamed. Nonetheless, it's a major reversal for the Pentagon, which has maintained its "can do" attitude to this point about Iraq and refused to admit that it could've done things any differently.
A Pentagon official conceded Tuesday that planners failed to foresee the chaos in postwar Iraq, as another U.S. soldier was killed and Defense Secretary Donald Rumsfeld signaled that guerrilla-type attacks could continue there for months.

Joseph Collins, deputy assistant secretary of Defense for stability operations, said that despite careful planning, the Pentagon was surprised by the extent of looting and lawlessness. Postwar conditions have ''been tougher and more complex'' than planners predicted, he said.
So what's going on? It's hard to tell. I didn't spend much time at the Pentagon at all; all my active duty time was much, much lower in the military. But I have followed these guys for a while in the media so I have some guesses. The first is that this is a hard issue, and there is legitimate room for disagreement. If retired-Gen. Eric Shinseki and Paul Wolfowitz could disagree so publicly over the size of the Iraqi deployment, then I think there's probably room for reasonable minds to disagree on a lot of these issues. To the extent that these people are giving candid interviews to the press, they will occassionally reveal their true feelings, or at least their initial reactions before they've had time to vet their true feelings with the SecDef's office. Suffice to say, I think there are deep divisions within the Pentagon over how to unscrew the Iraqi situation.

The second thing I think we're seeing is a gradual easing on the reins by Secretary Rumsfeld and his personal staff. After being in office for a while, they've started to develop a comfort zone with senior officials. Senior officials, in turn, have carved out their own turf and developed their own portfolios. They may even be starting to freelance a little bit; working towards the post they hope to have in the next administration.

Finally, I think we're seeing the fruit of hard work by the reporters who cover the Pentagon (and many who don't). These reporters were there before Rumsfeld, and they will likely be there afterwards. But until recently, they have hit a brick wall when they tried to get past the Pentagon's spin. I think the reporters have changed tactics in two significant ways. The first is to develop personal sources that can be trusted and used anonymously to report on significant developments -- like Esther Schrader's scoop that America was about to radically alter its footprint in Asia.

The second is to develop independent sources in the field who could corroborate or dispute reports from the Pentagon. Even if the SecDef can manage the message inside the Pentagon, he can't possibly do so around the world. Moreover, the guys in the field usually tell the truth, if only to tell the story accurately to their loved ones back home. Embedding reporters in combat units helped media organization develop these sources. A certain bonding happens when you get shot at together. In 10-20 years, when the officers in Iraq roam the Pentagon as generals, I imagine they'll have a completely different view of the media than today's generals -- and probably the name of the guy who drove with them to Baghdad in case they want to tell a story.

I guess this is not entirely responsive to Dan's query... but it's my best guess as to why the Pentagon appears to have lost its touch for managing the press. Of course, I think this is a great thing. We've sacrificed an awful lot of spirit, blood and treasure to fight Iraq and build a new nation. It's about time the Pentagon started to speak in the press about the reasons for that sacrifice.

Another academy sexual assault hits the news

The U.S. Naval Academy joined the U.S. Air Force Academy today as the target of an investigation into sexual assault in its student body. (Thanks to Stop the Bleating for the tip) The Baltimore Sun reports that a Naval Academy senior is under investigation for allegedly raping a female Naval Academy plebe (freshman). The victim has since left the academy, while the senior has been retained at the school to take additional classes to graduate. (That itself is unusual)

The matter is currently in what's called the "Article 32" phase, where a senior officer conducts a hearing similar to an arraignment to determine whether enough evidence exists to charge the senior.
Because the alleged offenses took place on academy grounds, they are being handled through the military justice system.

In addition to the rape and attempted rape counts, Curcio is charged, among other things, with sexual harassment, violating a protective order, conduct unbecoming an officer and a gentleman and having consensual oral sex with the woman in his dorm room in October, a violation of a rule barring sex in the dorm.
* * *
Last week, the woman, who is from Virginia, testified for more than six hours during a preliminary proceeding known as an Article 32 hearing.

During such a hearing, an investigating officer listens to the evidence and decides whether a defendant should face a court martial or internal discipline. The officer, who is likely to issue a finding within a week or two, can alternately decide to dismiss the charges.

The plebe testified last week that she and Curcio, members of the same company in the brigade, met early in her plebe year, according to the Navy Times, which first reported the story.
Quick thoughts... I'm not an academy graduate so I can't speak to the unique dynamic which exists at West Point, Annapolis and Colorado Springs. But I have served with academy graduates and two of my close friends are Annapolis grads. At first glance, this guy looks like a bad apple in an otherwise healthy bunch. It looks right to me that the Naval Academy is proscuting this guy in the military justice system -- that's the right thing to do, and it sends the right message of deterrence to the rest of the midshipmen. Navy has certainly done its share of soul-searching on the issue of gender integration, and I'm not sure that it needs another round of campus-wide investigation. On the other hand, if this incident is just one of many... then maybe that kind of look is appropriate.

Wednesday, June 11, 2003
Farewell to an old soldier

Today, Gen. Eric Shinseki retired from the Army and his position as the uniformed chief of America's oldest military service. Few officers have taken as many shots from politicians and other officers while serving in this job as Shinseki. His push to transform the Army into a lighter, faster, more deployable force met with considerable opposition from entrenched generals, defense contractors and military theorists. He presided over the Army's new "Army of One" recruiting campaign (aimed at Gen-X) that made a lot of old soldiers cringe. He also fought fierce battles with Secretary of Defense Donald Rumsfeld, over procurement issues like the Crusader artillery system and operational issues like the size of the Iraq deployment. On this last point, it appears that Shinseki was more right than Rumsfeld was. America had enough troops to win the war in Iraq, but should have listened to this old soldier's guidance on what it would take to win the peace.

Today, Gen. Shinseki had some final words on the subject of civilian control -- and civilian abuse -- of the Army. Always the consummate diplomat, he does not explicitly blame Rumsfeld for the problems in Iraq, or castigate him for plans to cut the Army's size. But just as Ike warned against the rise of the military-industrial complex in his final address 42 years ago, Shinseki sounds a cautious note about the months and years to come.

Sounds like good wisdom to me.

Two notes: (1) It appears that Secretary of Defense Donald Rumsfeld was conspicuously absent from today's ceremony, while traveling in Europe. His deputy, Paul Wolfowitz, was in Washington but appears to have been absent as well. None of Rumsfeld's undersecretaries appear to have attended. (This AP report confirms this) Both Rumsfeld and his deputy are absent from the lengthy "thank you's" at the front of Shinseki's speech. I'm not sure whose breach of protocol and courtesy is greater -- Rumsfeld/Wolfowitz for missing the ceremony, or Shinseki for failing to thank them. In any case, there's no love lost between them, as evidenced by Shinseki's remarks on civilian leadership. I can hardly blame Gen. Shinseki though, after watching Secretary Rumsfeld undercut him for so long -- going so far as to leak the name of Shinseki's replacement a year before his retirement.

(2) "Beware the 12 division strategy for a 10 division Army." This note of caution should resonate around the Pentagon, because this is a real problem. America's military is stretched very thin right now, and Secretary Rumsfeld has proposed troop cuts and realignments which would cut it even further. I'm a huge fan of transformation and efficiency, wherever it can be done. But many missions require manpower -- boots on the ground -- to be accomplished. They can't be done with money or machines. Nation-building is one example. America needs to conduct another review, like the one Colin Powell did in 1993 for then-President Clinton, of America's global strategy and the resources necessary to meet it. I realize the Pentagon does these about every 2 months, but the system has broken down in the face of increasing commitments abroad. It's time for a new, broad assessment of our strategic and political goals. That assessment, in turn, should drive resoucing decisions for the military so that we do not have to cope with the problem that Gen. Shinseki wisely warns us against.

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