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Army examines its choice of weapons lube

After taking sharp criticism from current and former soldiers alike for its continued use of "CLP" weapons lubricant, Inside the Army (subscription required) reports today that the Army has decided to relook its choice of lubricant for the standard M-16A2 assault rifle that most soldiers carry. (The same lube is also used for the M4 carbine and M249 squad automatic weapon)

Inside The Army
July 21, 2003
Pg. 1

Small Arms Problems In Iraq Spur Army To Investigate Lubricants

By Megan Scully

Problems with small arms during Operation Iraqi Freedom have prompted the Army to investigate alternatives to the standard lubricant used for individual weapons, like the M-16 machine gun, according to service officials.

Soldiers deployed to Iraq have consistently complained that the Army's standard “CLP product” attracted sand to weapons and otherwise performed poorly in the desert terrain, according to an Army after-action report on soldier equipment. CLP stands for the military specification for a lubricant -- cleaning, lubricating and preserving.

With confidence low in CLP, many soldiers turned to Militec-1, an artificial lubricant deemed by troops to be a “much better solution for lubricating individual and crew-served weapons,” the report states.

Army officials, however, are not so sure.

As a cleaner and a lubricant, the product works “fine,” according to an Army official. But because the product does not protect weapons against corrosion, it is not approved for small arms use by the Army's Armament Research, Development and Engineering Center.

Interest in the performance of small arms in Iraq has heightened in recent weeks with the release of the report on the March 23 ambush of the 507th Maintenance Company. The report details several instances in which the soldiers' M-16s malfunctioned during the ambush, but does not definitively indicate whether the jamming resulted from inadequate lubrication, poor maintenance or desert conditions.

The report on the 507th, however, does suggest that the weapons malfunctions “may have resulted from inadequate individual maintenance in a desert environment.”

According to a Militec Inc. official, the maintenance company never requested the Militec-1 product.

Militec-1 has been listed in the Defense Logistics Agency inventory for more than a decade. As such, field units were free to purchase it on their own until such requisitions were canceled in March, just prior to combat operations in Iraq, Russ Logan, senior vice president at Militec Inc., told Inside the Army last week.

Unit commanders and individual soldiers -- especially those from the 3rd Infantry, 1st Armored, 82nd Airborne and 101st Airborne divisions -- then began to purchase the lubricant individually, using both personal and military-issued credit cards, Logan said. Since March, the company has received thousands of individual orders for the product, which sells to the military for $3 per 1-ounce bottle -- enough to last a soldier in combat for six months.

In early May, the Army re-opened DLA requisitions for 60 days because officials didn't want to “second guess field commanders' operational requirements for lubricant,” the Army official said. That requisition window has since been closed and the service is now in the process of conducting an assessment of the “application and performance” of Militec-1 during Operation Iraqi Freedom.

Those findings will then feed into the overall lubricant study, which will review all alternatives to CLP -- not just Militec-1, the official said. The investigation will include representatives from across the Army, U.S. Special Operations Command, the independent Southwest Research Institute and industry.

“We're concerned about getting the best product to the soldier,” the Army official said. “If the study conclusions lead us to an entirely new military specification, that's one option. If it leads us back to CLP, that's another option; back to Militec-1, another option.”

But Militec claims that word never got out to the field on the re-opening of the requisition period and nearly $120,000 in canceled orders placed through the DLA in March and April were never recovered.

“The 60-day window was put into effect primarily after combat was over,” Logan said. “Very few people in the field knew about it.”

The Army and Militec are now locked in a heated debate over use of the product, with the service decidedly opposed to the full-scale distribution of any lubricant that does not meet military specifications.

“Our specifications are developed in response to operational requirements identified by [U.S. Army Forces Command] or [Training and Doctrine Command] soldier-customers,” Maj. Gen. Ross Thompson, commander of the Army's Tank-Automotive and Armaments Command, stated in a May 15 memorandum to Militec.

Thompson adds that the Army has worked for the last two years to update the lubricant specification “with input from industry that capitalizes on advanced technology,” according to the memorandum. The service eventually determined that the current CLP specification represents “state-of-the-art performance for this multi-purpose product.”

Militec, however, has argued that the preservative specification is not essential in dry environmental conditions. In the jungles of Vietnam, the Army “might worry” about corrosion, but the risk of that occurring in the Iraqi desert is low, Logan said.

The company also argues that the product's lubrication capabilities would be hindered if it functioned equally as a lubricant, cleaner and preservative. CLP, Logan said, “doesn't do any one of those three things well.”

“If the gun doesn't work, everything else is not important,” Logan said.

Thompson, however, is firm in his memorandum, stating that specifications are intended to challenge industry to “meet the span of the users' requirements.”

The Army official questioned whether malfunctioning weapons during OIF can be directly attributed to the lubricant itself. More likely, he said, a weapon will fail to work because proper preventative maintenance checks and services (PMCS) have not been performed.

“In my opinion, malfunctioning weapons, particularly small arms, historically have had more to do with a lack of PMCS on the weapon than a lack of Militec-1,” he said.

Any changes to PMCS, a function of leadership at the tactical level, would be made by TRADOC and field commanders. The lubrication review will focus only on materiel fixes.

“Inadequate small unit leadership is often the elephant in the living room and, therefore, often lost in the debate when evaluating lessons learned,” said the official, a former small unit leader. “It's seldom a one-dimensional problem of hardware . . . or lubrication.”

* Reprinted with permission from Inside Washington Publishers. Copyright 2003.

This is something I've written on before, in connection with the report on the 507th Maintenance Company ambush. "Soldiers For The Truth" has also had some good reporting on this, along with blogger colleagues One Hand Clapping and Winds of Change. Few things are more important in combat than having small arms which work when they're needed. I'm not sure if Militec is the right answer here, but I'm pretty sure that CLP is less than adequate. Of course, no weapons lubricant will work when soldiers fail to do the necessary weapons maintenance, a trend which also appears in the 507th report. However, we owe it to our soldiers to give them the best materiel that our defense dollars can buy. I hope this investigation pushes the Army a little bit closer to that product -- whatever it is.

Update: I recently updated this post with the full text of the article from Inside the Army, which is an independent publication which covers the Army and is associated with several other such publications about the other services. The original article was quite balanced, but I made the editorial decision to only post certain excerpts which criticized the Army. I received a note asking me to post the entire article, as well as permission to do so from the publisher, in the interest of fairness. I thought it was the right thing to do. For more outstanding coverage of this issue and others, I recommend making Inside the Army a regular stop. Their reporters consistently do a good job of reporting on this kind of stuff -- which as we see from this story, has a direct effect on the way our soldiers perform in combat.
posted by Phillip Carter at 09:26

 
Every generation has its heroes

Sunday's Washington Post has an extremely moving story about the men who suffered some of the most grievous wounds during the war with Iraq, and who now are recovering from their wounds at the Walter Reed Army Medical Center in Washington. (The Post also has the photos from the article available online.)

On TV, the war was a rout, with infrared tanks rolling toward Baghdad on a desert soundstage. But the permanent realities unfold more quietly on Georgia Avenue NW, behind the black iron gates of the nation's largest military hospital.

Here, the battle shifts from hot sand to polished hallways, and the broad ambitions of global security are replaced by the singular mission of saving a leg. Ward 57, the hospital's orthopedics wing, is the busiest. High-tech body armor spared lives but not necessarily limbs.

The night President Bush declared the end of major combat, the soldiers on Ward 57 slept, unaware of victory.

Garth Stewart was curled in a miserable ball of blue pajamas.

First Lt. John Fernandez, the West Point graduate, was beginning married life from a wheelchair.

Pfc. Danny Roberts was wishing for Faulkner instead of a glossy guide about adapting to limb loss.

Their war was not yet over.

Walter Reed has been treating wounded soldiers since the beginning of the century, expanding and contracting with the rhythms of war. During World War I, the number of patient beds grew from 80 to 2,500 in a matter of months. Three generations later, the soldiers from Operation Iraqi Freedom arrive, some so fresh from the battlefield they still have dirt and blood beneath their fingernails.

Each morning, across the sprawling grounds of the 147-acre compound, reveille is sounded at 6. But up on the hospital's fifth floor on Ward 57, the fluorescent dawn is indistinguishable from the fluorescent night. Two long halls flank the nurse's desk, the command center of the ward. Doctors begin their morning rounds at dawn.

Some thoughts... The human cost of war is always one of the most troubling things to accept, because it really calls into question our reasons for the war itself. When you look at a wounded combat veteran, the question stares back at you: "Was this man's injury worth it?" I will reserve judgment on that question, given all that has come to light in the last few weeks regarding our casus belli in Iraq. However, I believe that we owe these answers to the men and women we sent to Iraq, and to the families of those who will not return. Our nation should never fight for an unworthy case; the cost in blood and treasure is too high.
posted by Phillip Carter at 19:00

 
Two memorials in Santa Monica

I took my dog Peet for a walk today to the Third Street Promenade, and walked through two memorials to Wednesday's horrific incident at the Santa Monica farmer's market. One was what you might expect from the city of Santa Monica -- a multicultural, non-sectarian gathering to mourn the dead and give thanks for our existence. I've been a lot of memorial services, but this one didn't move me in any particular way.

The second memorial was the Saturday farmer's market itself, which promoters and farmers decided to hold today despite Wednesday's tragedy. Every vendor commemorated the incident in some way, whether with black cloth around his stand or black ribbons in front of his table. But the overall message was: we will persevere through this tragedy. That was a powerful message, and I think it was the best way to memorialize those who died on Wednesday.
posted by Phillip Carter at 13:51

 
Tony Blair: a great American

The British have been blessed in our time to have great orators like Winston Churchill and Tony Blair for national leaders. In times of crisis, these men lift their citizens' morale and spirits with moving words. Speaking before a joint session of Congress yesterday, Prime Minister Tony Blair turned his words towards us, his somewhat reluctant allies across the Atlantic.

Members of Congress, if this seems a long way from the threat of terror and weapons of mass destruction, it is only to say again that the world's security cannot be protected without the world's heart being won. So America must listen as well as lead. But, members of Congress, don't ever apologize for your values. (Applause.) Tell the world why you're proud of America. Tell them when "The Star-Spangled Banner" starts, Americans get to their feet -- Hispanics, Irish, Italians, Central Europeans, East Europeans, Jews, Muslims, white, Asian, black, those who go back to the early settlers, and those whose English is the same as some New York cab drivers I've dealt with -- (laughter) -- but whose sons and daughters could run for this Congress. Tell them why Americans, one and all, stand upright and respectful. Not because some state official told them to, but because whatever race, color, class or creed they are, being American means being free. That's why they're proud. (Cheers, sustained applause.)

As Britain knows, all predominant power seems for a time invincible, but in fact, it is transient. The question is, what do you leave behind? And what you can bequeath to this anxious world is the light of liberty. That is what this struggle against terrorist groups or states is about. We're not fighting for domination. We're not fighting for an American world, though we want a world in which America is at ease. We're not fighting for Christianity, but against religious fanaticism of all kinds. And this is not a war of civilizations, because each civilization has a unique capacity to enrich the stock of human heritage. We are fighting for the inalienable right of humankind -- black or white; Christian or not; left, right or merely indifferent -- to be free -- free to raise a family in love and hope; free to earn a living and be rewarded by your own efforts; free not to bend your knee to any man in fear; free to be you, so long as being you does not impair the freedom of others.

That's what we're fighting for, and it's a battle worth fighting. And I know it's hard on America. And in some small corner of this vast country, out in Nevada or Idaho or these places I've never been to but always wanted to go -- (laughter) -- I know out there, there's a guy getting on with his life, perfectly happily, minding his own business, saying to you, the political leaders of this country, "Why me, and why us, and why America?" And the only answer is because destiny put you in this place in history in this moment in time, and the task is yours to do. (Sustained applause.)

And our job -- my nation, that watched you grow, that you fought alongside and now fights alongside you, that takes enormous pride in our alliance and great affection in our common bond -- our job is to be there with you. You're not going to be alone. We will be with you in this fight for liberty. (Sustained applause.)

We will be with you in this fight for liberty. And if our spirit is right and our courage firm, the world will be with us.

Words like these remind us of our ideals, and of what it means to be an American. I can't help but feel pride when a national leader like Tony Blair speaks this way about America and its role in today's world. Now all we have to do is live up to these expectations -- a task which is easier said than done.


posted by Phillip Carter at 11:16

 
Planning for success?

The Washington bureau of the Los Angeles Times has a very interesting (and very lengthy) report today on what went wrong with America's planning for post-war Iraq. This is more than your typical "first draft of history" journalism -- the Times reporters painstakingly lay out the pre-war planning process, and the various ways that nation-building planning was neglected by the Administration.

Since the fall of Baghdad on April 9, U.S. and British troops have struggled to bring order from chaos. Water, electricity and security are in short supply, fueling resentment among many Iraqis. A guerrilla-like resistance has taken shape against the occupation; U.S. casualties mount almost daily in an operation that is costing nearly $4 billion a month and stalling the withdrawal of American forces.

The Bush administration planned well and won the war with minimal allied casualties. Now, according to interviews with dozens of administration officials, military leaders and independent analysts, missteps in the planning for the subsequent peace could threaten the lives of soldiers and drain U.S. resources indefinitely and cloud the victory itself.

Rivalry and Misreadings

The tale of what went wrong is one of agency infighting, ignored warnings and faulty assumptions.

An ambitious, yearlong State Department planning effort predicted many of the postwar troubles and advised how to resolve them. But the man who oversaw that effort was kept out of Iraq by the Pentagon, and most of his plans were shelved. Meanwhile, Douglas J. Feith, the No. 3 official at the Pentagon, also began postwar planning, in September. But he didn't seek out an overseer to run the country until January.

The man he picked, Garner, had run the U.S. operation to protect ethnic Kurds in northern Iraq after the 1991 Persian Gulf War. Based on that experience, Garner acknowledged, he badly underestimated the looting and lawlessness that would follow once Saddam Hussein's army was defeated. By the time he got to Baghdad, Garner said, 17 of 21 Iraqi ministries had "evaporated."

"Being a Monday morning quarterback," Garner says now, the underestimation was a mistake. "But if I had known that then, what would I have done about it?"

The postwar planning by the State and Defense departments, along with that of other agencies, was done in what bureaucrats call "vertical stovepipes." Each agency worked independently for months, with little coordination.

Even within the Pentagon there were barriers: The Joint Chiefs of Staff on the second floor worked closely with the State Department planners, while Feith's Special Plans Office on the third floor went its own way, working with a team from the Central Command under Army Gen. Tommy Franks.

Defense Secretary Donald H. Rumsfeld's civilian aides decided that they didn't need or want much help, officials in both departments say.

Central Command officials confirmed that their postwar planning group — dubbed Task Force Four, for the fourth phase of the war plan — took a back seat to the combat planners. What postwar planning did occur at the Central Command and the Pentagon was on disasters that never occurred: oil fires, masses of refugees, chemical and biological warfare, lethal epidemics, starvation.

The Pentagon planners also made two key assumptions that proved faulty. One was that American and British authorities would inherit a fully functioning modern state, with government ministries, police forces and public utilities in working order — a "plug and play" occupation. The second was that the resistance would end quickly.

posted by Phillip Carter at 05:21

 
Great initiative... not so great judgment

Every month, the Defense Department General Counsel's Standards of Conduct Office publishes a monthly advisory on ethics within the Pentagon and the military services. SOCO has responsibility for promulgating ethics regulations, training guidelines, etc., for the Pentagon. Their staff takes it really seriously too, however, they often find ways to teach their lessons in humorous ways. Here's an excerpt from their July 2003 advisory:

In yet another remarkable case of bad judgment, a Marine Corps company commander who was deployed in Iraq asked a tobacco company to send his men its products for free. After receiving the free goods, he sent a "thank you" note that was used as part of the tobacco company’s advertising. The letter implied that the DoD endorsed the product, and, eventually, garnered the attention of two Congressmen. Please remember the standards of conduct apply in Iraq, too.

It's hard to suppress a smile at this Marine captain's initiative. If I was his commander, I'd probably recommend him for a Navy Achievement Medal for this sort of thing, while chiding him privately about the thank-you note. These are the kinds of things we expect of our junior leaders, who we entrust with the lives of our finest sons and daughters. I hope his chain of command took care of him the way he took care of his Marines.
posted by Phillip Carter at 17:53

 
Federal judge says legal mission to Iraq was a sham

USA Today reports today that 6th Circuit Judge Gilbert S. Merritt has blasted the American government in Iraq for impeding a mission arranged by the Justice Department to restore Iraq's legal institutions. The DoJ-sponsored mission included federal judges, prosecutors and defense attorneys who had the charter of advising Iraq on its Constitution and the establishment of a new legal system.

Senior U.S. District Judge (sic) Gilbert Merritt said the 25-member delegation's hopes of assessing Baghdad's judicial and law enforcement institutions were hindered by the chaos in the city of 5 million people. Guerrilla warfare continues, water and electricity service are limited, police forces are barely functioning, and many courthouses are bombed-out shells, he and other members of the delegation said.

But Merritt was particularly annoyed by the U.S. occupation authority's attempt to control information by limiting what his group and others involved in rebuilding said to the news media.

Merritt is a former chief judge of the 6th U.S. Circuit Court of Appeals, which covers Michigan, Ohio, Kentucky and Tennessee. He said members of his delegation were given a directive authorized by the chief U.S. administrator in Baghdad, Paul Bremer. It said all contact with the news media had to be cleared by top officials of the Coalition Provisional Authority (CPA).

Merritt said the order seemed odd for a group of judges, lawyers and law enforcement experts who had been sent to Iraq by the Justice Department to help put Iraqis on a course for more individual freedom. "When I read it, I thought it must be a joke," said Merritt, 67. "It's clearly unconstitutional. It's a hell of an irony, given that we were there teaching them the value of liberty and free speech."

posted by Phillip Carter at 08:41

 
Pentagon to call up two National Guard brigades for Iraq

Greg Jaffe reports in this morning's Wall Street Journal (subscription required) that the Defense Department has decided it must call up two brigades of National Guard soldiers for the Iraq mission, since it has been unable to enlist America's allies in the effort there. Two brigades equates to roughly 10,000 soldiers, which does not seem like a lot for the 480,000 active-duty Army to manage. However, as the article points out, nearly all of the Army is committed to operations in Iraq, Bosnia, Kosovo, Korea and Afghanistan right now, leaving the Guard as America's only option.

Defense Secretary Donald Rumsfeld is expected to sign off on a plan later this week that would establish a rotation to relieve Marine and U.S. Army soldiers deployed in Iraq, a Pentagon official said. After training, it would be March or April by the time National Guard soldiers would be deployed, likely for stints of 13 to 16 months including the training. Even so, demands on the active-duty Army would remain intense. Asked if he had ever seen the Army stretched so thin, one senior defense official recently said: "Not in my 31 years" of military service.
* * *
The U.S. has 148,000 troops -- Army and Marine Corps -- on the ground in Iraq, with 33,000 support troops in Kuwait. There are an additional 11,000 U.S. soldiers serving in Afghanistan. No National Guard combat brigades are in Iraq, though Air National Guard personnel are flying missions.

The two brigades probably would be called up this winter, the Pentagonofficial said. They would be given about 30 days to get their affairs in order and then go through two to three months of training before being deployed. The earliest they would arrive in Iraq would be March or April 2004.

Currently, 21 of the Army's 33 active-duty combat brigades are deployed in Iraq, Afghanistan, South Korea and the Balkans. Three more brigades are in the process of modernizing and can't be sent abroad. That leaves nine brigades -- or 45,000 troops -- to relieve all of the Army forces deployed around the world.

This is going to be a challenge. America's National Guard has already been stretched thin by consecutive homeland security deployments since Sept. 11, known as Operation Noble Eagle. In the California Army National Guard, nearly every combat arms unit has already deployed once. The units which have deployed have returned in deplorable condition, with most soldiers opting to leave the Guard. There are a number of National Guard units which have been left alone for homeland security, and these are the likely units to deploy to Iraq. However, even that is a finite supply. If America is to stay in Iraq for the long hall, this solution won't work.
posted by Phillip Carter at 08:28

 
Painful lessons in Santa Monica

Yesterday's tragic incident in Santa Monica which left nine people dead is a tragic reminder of how quickly accidents can escalate into mass-casualty situations when crowds are involved. The incident (not an accident -- nothing is ever accidental; it always has some cause) happened a short walk away from where I live. I go to 3rd Street a lot, and I've been to that farmer's market a dozen or so times. Suffice to say, it was hard to work yesterday afternoon as the story unfolded.

It appears that this driver had no evil intent. Details are still emerging, but it looks like he tried to pump his brake pedal, but instead found his accelerator pedal. That doesn't change the carnage he caused. He still killed 9 people, and left dozens more hurt. Despite the apparent lack of evil intent, this incident holds many lessons learned for us as we think about how we might respond to another kind of mass-casualty event -- a terrorist attack. This is just my thinking, as a former anti-terrorism plans officer, but I think it's what a lot of folks in the Santa Monica Police Dept. are probably thinking about right now.

1. Large groups of people are targets. The reasons are many fold. First, large groups of people maximize the chances for large casualty counts, and that's usually a goal for terrorists. Second, the proportion of people who have been to a place where lots of people are is high, thus, lots of people will say afterwards "I've been there before -- that could have been me." This increases the fear factor of an attack, adding to its psychological impact. Finally, large gatherings of people tend to be media magnets -- there's often a camera crew there already to catch the news. As Brian Jenkins said 30 years ago, "terrorism is theater."

2. Simple measures can work. A threat assessment for the farmer's market in Santa Monica would have noted the threat of an inbound car or truck-borne explosive -- either one of which would be deadly. The proximity of this market to traffic makes that a possible threat, though not a probable one. Moreover, mitigating this threat would not have been hard. Parking two cars to physically block the street at either end of Arizona Ave. would have been sufficient; so too would have been placing "jersey bounce" barriers (concrete barriers that can stop a speeding car) at either end. (This would've been more costly, and entailed a crane to move them every time.

Ironically, the 3rd Street Promenade has retractable, sunk-in metal barriers at all ends, but those devices were never installed for the farmer's market area -- which has become somewhat of a permanent fixture. Perhaps the City Council should consider those before they reopen these markets.

3. Mass casualty plans and mutual aid plans work. The city of Santa Monica does not have the ambulance or medical capacity to deal with this kind of event. Luckily, the larger West L.A. area does. Within minutes, reports indicate, ambulances from other jurisdictions sped to Santa Monica to help, as did Life-Flight helicopters. Emergency rooms elsewhere in the area also pitched in, adding to the capacity of UCLA-Santa Monica Hospital and allowing the most urgent patients to be seen at the closest hospital. These measures save lives.

California (and the L.A. area in particular) are actually quite good at this kind of anti-terrorism preparation. Our region has been cursed with natural and man-made disasters like earthquakes, wildfires, floods and riots. In response, our "consequence management" agencies (fire, medical, public health, etc) have developed great plans and working relationships for these kinds of incidents. Those plans and coordination paid off yesterday in Santa Monica.

There are more lessons to be learned, but those are my initial thoughts on this morning after. More to follow as the story develops.
posted by Phillip Carter at 06:36

 
Pentagon to loan Unmanned Aerial Vehicles to homeland security effort

The trade journal Aerospace Daily reports today that the Defense Department plans to loan some of its high-tech unmanned aerial vehicles ("UAVs") to the Department of Homeland Security for border security. The loan will include military personnel and equipment. It's not clear whether the DoD personnel will merely train and familiarize DHS personnel with UAVs, or whether this loan will include some operational use of the UAVs for actual border security missions.

The deployment, set to take place within the next few months somewhere along America's southern border, comes at the request of Gordon England, deputy secretary for homeland security at DHS and former secretary of the Navy.

"This is a technology - UAVs - that we need in the Department of Homeland Security," England said July 14 at Naval Air Systems Command's (NAVAIR) second public UAV demonstration here at the Webster Field annex of Naval Air Station Patuxent River.

"We've asked the DOD folks if they could just do some training missions with us, so we can gain some familiarity with UAVs, particularly our border and transportation security people," England said. "We just want to let our people see them in operation, understand their resolution, how they might operate, [and] how they may augment us in the future."

The platform and exact location for the training exercise have yet to be chosen, according to England. DOD personnel will operate the UAVs.

Analysis: This raises some of the same legal questions that I wrote about in Slate last year when the Pentagon loaned surveillance aircraft to look for the D.C. sniper. Federal law bars the use of military personnel for law enforcement, although a number of exceptions exist.

So, when, exactly, can soldiers help the cops?

Almost always, so long as they don't directly engage in police work. The Army can offer intelligence, transportation, and logistical assistance to cops, but it can't conduct searches or make arrests.
* * *
In the 1980s, Congress mandated even more ways the military could provide support to local law enforcement. The main exceptions grew out of the "War on Drugs," allowing the military to do things like fly surveillance planes on the U.S. border with Mexico, train police officers in various military specialties, or provide radar data to the U.S. Border Patrol and Customs Service. A federal law also allows the military to share intelligence with local law enforcement officers, provided the intel is collected during normal military operations. Another major exception, created in 1996 after the Oklahoma City bombing, authorizes the military to provide support to local cops in the event of a chemical or biological attack.

The Army's current plan to fly reconnaissance planes in Maryland is covered by these exceptions: Army personnel will fly the planes and operate the equipment, but civilian police will ride along to analyze any evidence gathered while in flight.

As a matter of law, this UAV plan may be different from the case of the D.C. sniper. Arguably, the Department of Homeland Security is a national security agency more than a law enforcement agency. Its primary purpose in guarding the border is to prevent entry and secure the nation, though it certainly has the secondary purpose of prosecuting those who might break the law entering the U.S. The Posse Comitatus Act bars the use of military personnel and equipment for law enforcement -- it does not bar their use for national security functions. In addition, a number of exceptions exist, such as 10 U.S.C. 372, which states:

(a) In General. - The Secretary of Defense may, in accordance with other applicable law, make available any equipment (including associated supplies or spare parts), base facility, or research facility of the Department of Defense to any Federal, State, or local civilian law enforcement official for law enforcement purposes.

Ultimately, these exceptions are limited by 10 U.S.C. 375, which states that such assistance shall not include "direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law."

Bottom Line: It looks to me like this UAV loan program will be covered by the exceptions to Posse Comitatus. The interesting thing will be whether the loan program will be covered by two provisions in the Homeland Security Act of 2002, which created the DHS. Sections 876 and 886 expressly limit the military activities of the new department, and reaffirm Congress' commitment to the Posse Comitatus doctrine. Sec. 876 states:

Nothing in this Act shall confer upon the Secretary any authority to engage in warfighting, the military defense of the United States, or other military activities, nor shall anything in this Act limit the existing authority of the Department of Defense or the Armed Forces to engage in warfighting, the military defense of the United States, or other military activities.

There's a pretty good argument that this deployment of UAVs violates the spirit -- if not the letter -- of the Homeland Security Act. If Congress wanted a military homeland security effort, they would have simply told the Pentagon to make it happen without creating a Dept. of Homeland Security. Instead, I think that Congress wanted a civilian effort on the domestic security front.

Eventually, I think that DHS probably plans to buy its own UAVs to run its own border security operations. But in the interim, I think they need to answer some tough legal questions about their plan to borrow them from the Pentagon.
posted by Phillip Carter at 09:07

 
Judicial deference and national security

I have a piece today in Writ, Findlaw.Com's online journal of legal commentary, which criticizes judicial deference to the Executive Branch on national security grounds as somewhat anachronistic and out-of-step with modern reality. The piece tries to paint a picture of Constitutional tension between individual rights on the one hand, and the President's power to command the military on the other. Ultimately, what's needed is more of a balancing approach, rather than a strict policy of deference by the courts whenever national security is involved.

Does the judicial deference doctrine still make sense today? For a number of reasons, it may not be as well-justified as it once was.

Recall that one early justification for the doctrine was the Executive Branch's superior national security knowledge and expertise. In the modern era, however, judges are more knowledgeable about foreign policy than they may once have been. The information asymmetry which used to exist between the Executive and Judicial branches has been wiped away, thanks to CNN and the rise of the modern media establishment.

Moreover, to the extent that there are gaps in judges' knowledge, the executive branch can provide them with sensitive national security information through various means spelled out in the Classified Information Procedures Act. Judges can review this information "in camera" - outside the presence or access of the parties - if necessary to preserve secrecy and security.

Over time, the military itself has also changed in ways which are relevant to the issue of judicial deference. Our all-volunteer force is a more diverse cross-section of our society than any employer or university. To the extent that society has become more tolerant of gay persons and more inclined to honor their rights, so too has the pool of young men and women joining today's miltiary.

These young people are the product of a society that recognizes certain fundamental rights and liberties for all Americans. When they enlist, they choose a life that involves sacrifice and hardship. But they never fully leave behind the values and beliefs they had when they joined the service.

For this reason, deference to military policies that infringe individual liberties on this, and other issues, can create tremendous dissonance between the values of the military and civil society - leading servicepersons to question and doubt the military's institutional values.

The dissonance and doubt add other variables with which commanders have to contend as they train, assimilate, socialize, and lead soldiers. Thus, the very policies intended to bolster morale and unit cohesion, good order, and discipline, may end up detracting from all these values if many servicemembers consider the policies intolerably unjust.

Update: CNN.com just picked up this piece and published it on the legal page of their news site.
posted by Phillip Carter at 05:53

 
3rd Infantry Division to remain in Iraq

MSNBC and others report that the Army has delayed the return of its 3rd Infantry Division from Iraq again. With attacks on Americans growing more frequent and deadly, Pentagon leaders appear unwilling to reduce their force in Iraq to deal with those attacks. The decision is the second for the "Rock of the Marne" division, whose soldiers had been told they would return to the U.S. in June. Many of 3ID's soldiers have been in the desert for 9-12 months, and numerous stories have reported on the morale problems for both soldiers and families created by the back-and-forth over the division's redeployment.

Maj. Gen. Buford C. Blount III, the division’s commander, said last week he hoped the division’s 1st and 2nd Brigade Combat Teams of roughly 9,000 soldiers could return home to Fort Stewart within the next six weeks.

But homecomings for those soldiers, as well as the division’s 3rd Squadron, 7th Cavalry Regiment, have now been postponed indefinitely, Fort Stewart spokesman Richard Olson said Monday.

"Now, that time frame has basically gone away, and there is no time frame," Olson said.

"It’s damned obvious why they’re not coming home as promised — there’s no stability in place yet," in Iraq, an Army official told NBC News’ Jim Miklaszewski.

The extension order will pertain to the 1st and 2nd brigades of the Army’s 3rd Infantry division, many of whom have been in the Iraq area now for nearly a year.

The Army’s 1st Cavalry Division out of Fort Hood, Texas, was due to rotate into Iraq to replace the 3rd Infantry Division, but now it is unclear what that timetable is.

According to the 3ID website, a number of units have redeployed from Iraq, and more are on the way home. It also appears this redeployment is being done in rough reverse chronological order, based on who deployed to the desert first.

Balancing mission accomplishment against morale is a hard thing. It's the quintessential challenge for every military leader, in peace and war. Every unit finds its own balance; some are more "hard core" than others. The redeployment of 3ID is essentially a large version of this problem. The Pentagon must accomplish the mission in Iraq; we've spent too much blood and treasure to lose now. But at the same time, we must take care of our soldiers and their families -- we owe them that. I think it's time to bring 3ID home and rotate another unit over there. But I would hate to see this division come home at the cost of the mission, because that would undermine all the sacrifices these men and women have made.
posted by Phillip Carter at 21:09

 
GO LANCE!!!

Four-time Tour De France winner Lance Armstrong seized the overall lead today in the L'Alpe D'Huez stage that he has historically dominated. Although Lance didn't win the stage as he normally does, he did gain enough time on the pack to slide into 1st overall in the 21-day race. Lance now leads Joseba Beloki of Spain by 40 seconds. Winning the Tour De France four times in a row is spectactular enough, but Lance hopes to match Spain's Miguel Indurain by winning five consecutive tours.

As many people know, Lance nearly died a few years ago from testicular cancer -- a story which he tells in his extremely moving book "It's Not About the Bike". I think it's amazing for anyone to even finish the Tour De France, let alone win it. Add to that winning it four times. Add to that winning it four times in a row after near-certain death. Lance is one of my heroes, and I am stoked that he has taken the yellow jersey in the French Alps.
posted by Phillip Carter at 12:35

 
Rumsfeld orders restructuring of America's military
Policy changes would shift forces from the reserves to the active force

Esther Schrader scoops the competition in Saturday's Los Angeles Times by reporting on a memo that Secretary of Defense Donald Rumsfeld sent to his senior commanders and policy chiefs which directs them to start considering radical changes to the active/reserve mix of America's military. The changes come in the 22nd month of America's war on terrorism, with its military stretched to the limit with current operations in the Balkans, Afghanistan, Iraq and elsewhere. The goal, Ms. Schrader reports, is to ready America's military for the next conflict -- one for which we may get only a couple of weeks warning.

In a July 9 memo to the secretaries of the Air Force, the Navy, the Army and to the chairman of the Joint Chiefs of Staff, Rumsfeld called for shifting a broad range of professional specialties from the reserves to the active duty force to allow the military to mobilize for a major war within 15 days.

The proposal is running into opposition from senior officials at the Navy and the Air Force, who warn that moving these jobs into the active-duty force would drive up costs. Reserve officials say they were stunned by the proposal, which they fear would shrink the role of citizen soldiers into irrelevance.

Rumsfeld's office could not be reached for comment.

Calling the effort "a matter of the utmost urgency," in the memo obtained by The Times, Rumsfeld ordered plans for implementing it to be drawn up by the end of the month.

The secretary's action was a direct result of the crisis in force strength caused by the deepening violence against U.S. forces in Iraq, sources close to him in the Pentagon said.

Before and during the war, Army officials had planned for no more than 50,000 soldiers to still be in Iraq at this point. But 148,000 are there, and with attacks against them growing in number and sophistication, senior Pentagon officials say they expect troop numbers in the country to remain at or near the same level for years to come.

As the war on terrorism continues, more than 370,000 Army soldiers are deployed away from home and family in 120 countries around the world. About 138,000 are reservists, many in certain specialties that are being called up again and again. Another 67,000 reservists from the other military services are also deployed.

Ms. Schrader's article correctly points out some of the complexities of this issue. In Vietnam, America's political leadership made a conscious decision to fight without the reserves; to use a conscription-based force of regulars instead. This was done because the reserves reach into every city and town in America. A callup of reserves requires a tremendous amount of popular support and political capital -- two things lacking in Vietnam. After that war ended, Gen. Creighton Abrams and others created the "Total Force Concept", in which critical functions would be put into the reserves so that their callup would be necessary for any future wars. The idea was to force the President to only fight wars where he had the political capital to callup the reserves.

Acting on that idea, the active-duty services moved many of the specialties needed to fight a war - security, intelligence, transportation and logistics - over to the reserves and National Guard.

But the force that resulted was not designed to be in a state of constant mobilization. It currently takes from one to three months to mobilize most reserve units. Although some units are designed to deploy quickly, most must first undergo intensive training in the United States before being shipped out.

"The type of war that we're in, the war on terrorism, is going to be something that is going to require long-term commitments of our armed forces. And the way that we're structured right now is to have conflicts where you send people over, they fight, and they go home," one Pentagon official said. "The war on terrorism is a much longer, twilight struggle."

That struggle is putting unprecedented strains on the military - and the Army in particular, which shoulders the burden of peacekeeping and nation-building operations more than any other service. In recent weeks, Army officials have repeatedly and insistently told Rumsfeld that the service needs more soldiers to handle its new duties.

Before the Sept. 11 terror attacks, Army officials had openly voiced concern that Rumsfeld would seek to cut as many as two of the Army's 10 divisions. After the attacks, Rumsfeld has continued to insist that Army troops should be deployed in different places around the globe, and in new ways, but he has not proposed slashing troop numbers.

At his retirement ceremony June 11, departing Army Chief of Staff Gen. Eric K. Shinseki warned to "beware the 12-division strategy for a 10-division Army."

The Bottom Line: America has missions is has to accomplish with its military. Its military is stretched to the limit. Our leaders can influence the ledger on either side of this equation. We can increase the size of our military, or we can decrease our mission commitments. It looks like our war on terrorism will last for the foreseeable future, and the same can be said of our occupation in Iraq. Therefore, we must figure out a way to bolster our force. The Pentagon has relied on a steady stream of reservists for some time to do this, but those reserves may be running out. The Rumsfeld plan may be the best available option. More to follow...
posted by Phillip Carter at 19:16

 
The myth of the monolithic Pentagon:
SecDef's office opposes move to give health coverage to reservists

The AP reports today that the Secretary of Defense's office has written Congress to request deletion of a provision in the defense budget bill that would give full medical coverage to reservists and their families. This provision was designed to extend the benefits of the military health-care system to thousands of reservists (like me) who do one weekend a month and two weeks in the summer. It would also have the side benefit of making mobilization easier, since these soldiers/families would already be integrated into the military health care system when the call to active duty came.

However, the SecDef's office warned Congress that the policy would be enormously costly -- to the detriment of the Pentagon's already bloated $380 billion budget.

[Rumsfeld] said he would recommend that President Bush veto the defense authorization bill if it included a Senate plan to expand TRICARE, the military health program. He estimated the change could cost $5 billion per year; Democrats disputed that figure.

"These unfunded entitlements would drain resources from important programs benefiting our military, such as continued improvements in pay, quality of life, readiness, and other pressing requirements," Rumsfeld said.

At issue is a plan approved by the Senate in May to allow inactive members of the National Guard and reserves to be covered under TRICARE, the health-care program offered to active-duty soldiers. National Guard members and reservists are now covered by the program while on active duty.

"It's only a matter of fairness," Sen. Tom Daschle (D., S.D.) said yesterday. "As we speak, members of the Guard and reserves are still on active duty... . I believe that as they come home, having sacrificed so much, at least we ought to give them the opportunity to pay for their own health insurance under TRICARE."
* * *
The Pentagon said 204,100 members of the reserves or National Guard were on active duty as of Wednesday.

One in five National Guard members or reservists do not have health insurance, and the TRICARE measure could allow them to be healthier when called to active duty, said John Goheen, spokesman for the National Guard Association of America.

Analysis: I think both sides have a point here. The SecDef is correct about the financial impacts this would have on the current military health-care system, and the cost for the Defense Department. However, that may be a cost worth bearing. America has relied on these reservists more in the last 22 months than anytime since the Korean War. Medical coverage would be one way to show the reservists and their families that America cares about them. It would also boost reserve readiness, since a major mobilization problem has been getting soldiers up to active-duty medical standards. There may even be a tangential recruiting benefit here, if joining the reserves carried the benefit of full medical coverage.

Bottom Line: I think the benefits outweigh the costs here. There's enough fat in the Pentagon's budget to pay for this; taking care of soldiers and families is more important than a lot of things in the $380 billion bill.
posted by Phillip Carter at 08:45

 
Recommended reading: The El Paso Times has uploaded a scanned version of the Army's report on the 507th Maintenance Company ambush. This is an extremely well-written executive summary of what happened to these soldiers, and I think it supports my conclusions below.
posted by Phillip Carter at 14:06

 
Report: Unit's weapons didn't work during convoy ambush
Breakdown in basic soldiering skills led to disastrous capture of American POWs

The Washington Post reports tonight on a report (also reported by the NY Times and LA Times) that identifies the main reason why PFC Jessica Lynch and five other soldiers were captured by Iraqi guerrillas on the road to Baghdad -- faulty weapons training and maintenance. The report indicates that soldiers had difficulty firing both their personal weapons (the M16A2 rifle) and their crew-served weapons (the M2 .50 caliber machine gun) at the enemy when fired upon. Few things will end a firefight badly more easily than weapons that won't shoot. Unfortunately, it appears from this report and others that the culprit was poor weapons training and maintenance.

"These malfunctions," the report says, "may have resulted from inadequate individual maintenance in a desert environment" where sand, heat and improper maintenance combined to render the weapons inoperable.

The report on the incident, scheduled to be released this week, adds new details to the circumstances reported last month by The Washington Post, which described how the 18-vehicle convoy got lost in the southern Iraqi city after its company commander, Capt. Troy King, did not receive word that the larger column it was following had changed routes. The convoy then made several navigational errors, which required the slow, lumbering vehicles to make two U-turns in the middle of hostile territory.
* * *
The unit's 18-vehicle convoy had broken into three clusters as the unit retraced its route. "Most soldiers" in the first group reported that their M-16s malfunctioned as they tried to "return fire while moving," the report said.

When Cpl. Damien Luten, sitting in the passenger seat of a 5-ton tractor trailer in the second group, attempted to fire the unit's only .50-caliber machine gun, it failed, the report said. Luten was wounded in the leg while reaching for his M-16. Spec. James Grubb, in the passenger seat of a 5-ton fuel truck, "returned fire with his M-16 until wounded in both arms, despite reported jamming of his weapon," it said.

The third group of vehicles, which included the Humvee in which Lynch was riding, also had weapons problems.

After Lynch's Humvee crashed, Sgt. James Riley ran with two other soldiers to see if the vehicle's occupants could be saved. His weapon jammed. Riley reached for 1st Sgt. Robert Dowdy's M-16 to use instead. Dowdy had been killed instantly in the crash. Riley ordered the two soldiers with him to take cover and then tried to use each of their M-16s against the Iraqis. "But both jammed," the report said.
* * *
Spec. Joseph Hudson attempted to fire his M-249 Squad Automatic Weapon as he drove a huge wrecker towing a 5-ton tractor-trailer that had broken down. But the weapon malfunctioned. After driving past obstacles and debris strewn in his path, the vehicle broke down on the southern edge of the city as he neared safety. Iraqi forces fired on the stalled wrecker, killing Hudson's passenger, Chief Warrant Officer Johnny Villareal Mata.
* * *
U.S. officials also said recently that Lynch's weapon may have jammed during the ambush. Because she was seated between two other soldiers, however, it is also possible she did not fire it, one Army official said yesterday.

Analysis: I'm going to revert back to my NTC Observer/Controller training to pick out some issues that seem obvious from this story. These may seem like harsh criticisms, but if these things happened during a rotation at the National Training Center, these are exactly the things that would be discussed in the After Action Review. A causal link exists between each of these failures before combat and what happened in combat.

(1) Weapons Maintenance. Rifles and machine guns require a lot of tender loving care to work properly -- they require even more TLC in the harsh desert environment. Despite popular conceptions, the M16A2 rifle is a fairly intricate piece of machinery with lots of small moving pieces. It takes regular cleaning and lubrication in order to work. In the California desert, my platoon made a standard practice of field cleaning our rifles once a day -- more if possible. The sand is even more fine in Iraq. I have been told it resembles an awful form of talcum powder that gets in everything. In those conditions, the rifle would need to be cleaned and lubricated more than once a day. The rifle would also need to be protected in some way from the elements, such as with a plastic cap or latex balloon over the muzzle. Leaders must check their soldiers' weapons constantly to ensure this is being done. As the old maxim says: "Soldiers do what leaders check."

(2) Lubrication. It's not enough to clean the M16 rifle, M249 squad automatic weapon, or M2 .50 cal machine gun -- you also have to regularly apply lubricant in order to keep the metal parts moving against each other. The standard military lubricant for small arms is called "CLP" (See this discussion regarding CLP at Winds of Change). It worked okay for me in Korea and Texas, but not well. My platoon sergeant (an avid hunter) liked to use special commercially-available lubricants that he knew worked better. Apparently, he knew more than the Army's procurement folks. In the weeks since the war, several after action reviews have concluded that the Army's standard weapons lube was inadequate for the job in the desert.

Lubricant: Soldiers provided consistent comments that CLP was not a good choice for weapons maintenance in this environment. The sand is as fine as talcum powder here. The CLP attracted the sand to the weapon. ?… Soldiers considered a product called MiliTec to be a much better solution for lubricating individual and crew-served weapons.

Various current and former military officers echoed this report, saying that CLP was one of the worst lubricants the Army could buy for the desert:

"The CLP and Breakfree brand oil the military purchases is worthless," said Aaron Johnson, a 10-year veteran of the Army and Army Reserve, and author of a DefenseWatch guest column on the Army M9 sidearm "How to Save the M9 Beretta"; June 16, 2003). "I'm sure large amounts are acquired [by the Army] at relatively low cost, but that's why it should be done away with. That oil is too rich, and has little effectiveness at keeping weapons clean."

"The troops will tell you, CLP attracts dirt and grit," Johnson continued. "It is also so thick it can reduce recoil speed, resulting in stoppages. It thickens in the cold, and when in hot weather areas it is usually attracting dust and sand."

In an e-mail forwarded to DefenseWatch, retired Lt. Col. Robert Kovacic, who works for a defense contractor in Kuwait that trains U.S. military units, echoed Johnson's remarks. "I can say with complete assuredness, from many, many observations of training exercises], that CLP does not work. I did not use it at Fort Polk (cause it did not prevent rust)... I don't care what the government says... and it sure as hell does not work here."

What is bewildering to veterans such as these is that there is a product that has proven effective in desert combat. MILITEC-1 Synthetic Metal Conditioner, manufactured by the company of the same name, has been approved for Army use and is already widely used by the U.S. Coast Guard, FBI and a host of other federal police agencies. But the Army apparently is still shipping CLP en masse to the troops and has resisted ordering the synthetic lubricant, forcing unit commanders to pay out of their own pockets to acquire it.

The problem, Kovacic said, is that the Defense Logistics Agency allegedly refused to ship MILITEC to a number of units heading for combat in Iraq, despite previous approval of the product for Army weapons. "So, if front-line commanders order this product," he asked, "where does DLA have the authority to stop shipment? It is the brigade commander's butt in battle and if he wants to use a different lubricant, because the government stuff does not work, he can't"

Once again, our soldiers went into harm's way with lousy equipment because the procurement system failed them. There is some irony here, in that the original M16 rifle went into combat in Vietnam with many flaws that were learned at the cost of American lives. Today, we appear to have the best military in the world. Yet we are forced to learn lessons about our equipment the hard way.

3. Weapons Training. Weapons maintenance and lubrication are often a function of weapons training. Soldiers who know their weapons well will take care of them, because they are familiar with the effects of not doing so. Moreover, at least one part of the 507th Maintenance Company report indicates a probable failure of weapons training:

King [the company commander] then split the company into three groups, according to the Army investigation.

He took Group One, and they fought their way south through the city. Iraqis tried to block their exit with vehicles and debris. "Most of the soldiers in this group report that they experienced weapons malfunctions," the Army said. "These malfunctions may have resulted from inadequate individual maintenance in a desert environment."

But they made it out, and soon joined a Marine Corps tank battalion.

In Group Two, Cpl. Damien Luten "attempted to return fire with the 507th's only .50-caliber machine gun but the weapon failed," the report said. "Luten was wounded in the leg while reaching for his M-16."

Small-arms fire and rocket-propelled grenades burst around them. Their escape route also was partially blocked. Five soldiers were wounded, including Spc. James Grubb, who "returned fire with his M-16 until wounded in both arms, despite reported jamming of his weapon."

Marines also rescued Group Two.

The M2 .50 caliber machine gun doesn't just fail -- it fails for a reason. It's one of the most venerable weapons in the Army inventory; its basic design has not changed for decades. The most common reason for failure is the operator's failure to properly set the head space and timing. The internal parts of the .50 cal have a certain amount of play, and these parts have to be set right in order to work. If you set the headspace or timing wrong -- or fail to reset it after a while -- the weapon will malfunction. In some cases, this means it will fire one shot and then stop. In others, it may cause the weapon to misfire more severely, or even blow up.

In any case, this is the most probable reason for the .50 cal's failure in the 507th convoy. And it traces directly back to a failure to train the operator on how to shoot the .50 cal. In many units -- especially support units -- .50 cal training is hard to get in peacetime. The ranges are few and the ammunition is usually short, and it's often hard to get the right guy to the range because soldiers are often rotating through positions within a given unit. In combat, all of these are just excuses. The bottom line is that the 507th's convoy didn't have its .50 cal when it needed it, and its soldiers paid the price.

4. Land Navigation and Fieldcraft. It appears that Captain King got his convoy lost in the desert. Either he failed to properly copy the route, failed to follow the route, or failed to adjust the route based on information from his higher headquarters. The results were fatal. Soldiers in the Army don't do enough training on basic land navigation. Indeed, in many units, they simply rely on their Global Positioning Systems for this skill, as Captain King appeared to do:

The 507th, based at Fort Bliss, Texas, was not a combat unit; its members included cooks, mechanics, technicians and clerks. On March 21, the company crossed into Iraq from Kuwait as part of a convoy supporting a Patriot missile battalion. But early into the deployment, the company's commander, Capt. Troy King, misread his assigned route, the report said.

According to the Army findings, King relied primarily on his Global Positioning System device and an annotated map on which he had highlighted "Route Blue." King "believed in error that Blue was his assigned route," the report said.

King could not be reached for comment Wednesday. A spokeswoman at Fort Bliss said he was on routine leave.

As the convoy sped north, the 507th, with 18 vehicles, "bogged down in the soft sand," the report said. "Drivers from many units became confused due to the darkness, causing some vehicles to separate from their march columns."

And the route King chose, the report said, "proved to be extremely difficult, over rough terrain."

Getting lost in peacetime is embarassing; it usually means you have to buy the beer or do pushups. Getting lost in wartime can be fatal. I learned this lesson in Korea when I misread the terrain once and wound up driving up a long canyon that led straight to the DMZ -- it took an extra 2 hours to back up the canyon and drive home. I never got lost again as an Army officer. My unit, a division MP company, trained a lot on land navigation because we knew that logistics units like the 507th would rely on us for this skill. As flattering as that was, it's the wrong answer. Every soldier and leader must be capable of moving from point A to point B in a way that gets them there alive. And they need to be able to do it without gadgets like the GPS, at night, with just a map and a compass (see FM 3-25.26 for more on the basics of land navigation)

Summary: I don't want to keep picking on support units, but in this case, I see a trend. Support units work hard in peacetime to keep our equipment running, often to the neglect of their own field training. The result is that they do not meet the standard for basic soldiering and warfighting skills. Of course, they learn through trial and error just like every unit. But the result of waiting to learn these lessons in wartime is that young Americans die as the unit climbs the learning curve. Our Army needs to embrace the warrior ethos in all units -- not just the combat arms -- and it needs to ensure that every unit can fight its way out of an ambush like this one.

In the end, none of this may have made the crucial difference and saved the convoy. War is chaotic, and bad things happend to good units who do everything right. But commanders strive to set their units up for success; to do everything possible to make the fight an unfair one -- for the enemy. Training, maintenance, pre-combat checks, pre-combat inspections, and fieldcraft are what enable good units to execute when the time comes on the battlefield. The 507th Maintenance Convoy failed in these areas, and the effects were devastating.
posted by Phillip Carter at 22:09

 
Enemy combatant asks court for release

Ali Saleh Kahlah Al-Marri, who has been deemed an "enemy combatant" by President Bush, filed suit in federal court today seeking release from that status and from Defense Department custody. Like Jose Padilla and Yasser Hamdi before him, Al-Marri contends that such a status is unlawful and unconstitutional.

Lawyers for the student, Ali Saleh Kahlah Al-Marri, argued in an appeal filed in federal court in Illinois that Mr. Bush's June 23 order declaring Mr. Marri to be an operative for Al Qaeda and an enemy combatant represented an act of "unbridled authority" that was illegal and unconstitutional.

Specialists in military law said that the legal challenge, coming just days after the Bush administration announced it was considering the use of military tribunals against six terrorism suspects, could present an important test of the executive branch's power to imprison suspects outside the reach of the civilian court system.

Mr. Marri, 37, had been scheduled to go on trial this month in Illinois on charges that he lied to the F.B.I. soon after the attacks of Sept. 11, 2001, about his travels and engaged in credit card fraud. But in a surprise decision last month, the Bush administration instead had him removed from the court system and jailed in a Navy brig in South Carolina as an enemy combatant. Officials said recent intelligence indicated that he had visited a Qaeda terrorist training camp in Afghanistan and that he was prepared to help "settle" operatives in the United States for further attacks after Sept. 11.

Bush administration officials declined to comment on the legal challenge today. "If we have any response, we'll respond in court," said Bryan Sierra, a Justice Department spokesman.

Indeed they will... If the Hamdi and Padilla cases are any indicators, the Bush Administration will vigorously contest this case in court to uphold its authority to designate enemy combatants and detain them as such. This is another issue where the courts have been very deferential to the Executive Branch. However, the deference hasn't been perfect. A federal judge in New York ordered the Pentagon to allow Padilla to meet with his lawyer in Dec. 2002, and the government has lost other legal battles in the Moussaoui case relating to its power to sequester combatants who may also be material witnesses. It's likely that the Al-Marri case will follow the path of the others, and end at a brick wall for Mr. Al-Marri.

That may be right outcome. Nation-states have had the authority to designate their enemies for centuries. If Al-Marri is an enemy of the United States, then our President has the inherent power as the leader of a sovereign nation to take military action against him. Normally, that would entail killing him. But we have chosen in this instance to take him prisoner and interrogate him for intelligence. That is a perfectly lawful act as a matter of international law. Indeed, the Third Geneva Convention precludes the trial of a combatant in civilian court for the lawful acts of a soldier (war crimes are a different matter).
posted by Phillip Carter at 18:17

 
Plaintiff files first post-Lawrence challenge to the military

Today's New York Times reports that a former Army lieutenant colonel has filed suit in federal court against the Army challenging his discharge for being gay. Loren S. Loomis was forcibly discharged one week before his 20-year retirement after firefighters found tapes of him having sex with another man while responding to a fire at his residence near Fort Hood, Texas. Emboldened by the Supreme Court's decision in Lawrence, Mr. Loomis has filed suit challenging the legality of his discharge.

The Army discharged Mr. Loomis, who was wounded in the Vietnam War, in which he won two Bronze Stars and a Purple Heart, under "other than honorable" conditions, a move that deprived him of pension and benefits that he says are worth more than $1 million.

Mr. Loomis appealed his discharge through the military's administrative process, petitioning the Army Board for the Correction of Military Records, but the board declined to reinstate him or award him retirement benefits.

"A soldier's sex life should be private and protected by the Constitution," Mr. Loomis said in a interview. "Too often, the Army denies those who have sacrificed in its service the basic protection of law."

Mr. Loomis, who now runs a land development company in Albuquerque, says he kept his homosexuality a private matter. It became an issue to the Army only after his home, near Fort Hood, Tex., was burned in 1996. The arsonist, an Army private who had posed for nude photographs for Mr. Loomis, said he was trying to destroy the pictures.

Analysis: The discharge of gay servicemembers is governed today by Title 10, Section 654, United States Code, which states:

"A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations:
(1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts . . .
(2) That the member has stated that he or she is a homosexual or bisexual . . .
(3) That the member has married or attempted to marry a person known to be of the same biological sex."

To win, Mr. Loomis will have to get the court to rule that this statute places an unconstitutional burden on his fundamental right to intimate conduct, as stated by Justice Kennedy in his Lawrence opinion. Once a fundamental right is implicated by a law, the court must ask two questions:

(1) Does the law further a compelling government interest?
(2) Is the law narrowly tailored to further that compelling government interest?

Lots of things can affect this calculus, and it's by no means easy to predict how courts will go. However, the burden clearly lies with the government to justify its exclusion of gays from the military. Laws which burden fundamental rights are presumptively unconstitutional, unless the government can show why the law should survive. I think they have the "compelling interest" prong down cold -- America needs an effective military with cohesive units. But it's not clear that this policy is narrowly tailored to achieve that interest. It may be both underinclusive and overinclusive in the sense that it requires an overt statement, act or marriage to trigger the exclusion.

So will the law survive here? It's hard to tell. The reason is that the courts have historically given great deference to the Executive Branch and the military on matters of national security. See, e.g., Korematsu v. United States; Doe v. Bush. Such deference will be given to the military on both prongs of the fundamental rights analysis. The courts will most likely defer to the military on the issue of whether this policy furthers a compelling government interest. And the courts will also give weight to the military's judgment about whether this is the best tailored policy possible for achieving the compelling interest of a cohesive and effective military.

In any other context, the law would certainly fail. But the doctrine of military deference affects the fundamental rights calculus in a weird way, as seen in military cases on religion and speech. In addition to the military deference doctrine, there's also a doctrine of deference to the political branches on issues best resolved by Congress and the President. The legislative history of 10 U.S.C. 654 indicates that this statute was hammered out as a compromise between the two political branches after an extremely contentious political debate. The courts may not be willing to step into that fight.

Bottom Line: Military deference and political deference can only go so far. At some point, the court may decide this issue is too important to decide on those bases. The court may also decide the Constitutional rights at stake are too important to leave to military decisionmaking and political arm-wrestling. I honestly don't know how this will turn out, because I don't have the Constitutional Law expertise to offer an intelligent answer to these questions. Lawrence put this issue into play, after a series of courts had ruled against such challenges in the 1990s, but it's not clear how it will be resolved this time. Good arguments exist on both sides -- it's now up to the judge to decide.
posted by Phillip Carter at 17:56

 
Army contracts for 100,000-soldier barracks in Iraq

In what seems like deja vu from our deployment to the Balkans, Inside the Army reports that the Army has contracted Kellogg Brown & Root to build barracks for 100,000 soldiers in Iraq. This is a major step towards a long-term, institutionalized, semi-permanent U.S. presence in Iraq. Permanent bases are easier to secure, better for the soldiers, and more conducive to long-term deployments. I think this is an indicator that the Pentagon is planning for a long-term occupation of Iraq -- perhaps up to 10-30 years.

While some of the housing might be as crude as tents, Army officials say the project could provide more durable structures and describe accommodations similar to those found at longer-term peacekeeping spots around the world, like Kosovo.

Approximately 146,000 U.S. troops are stationed in Iraq. President Bush last week said the United States faces a “massive and long-term undertaking” there, although military officials have been hesitant to say how many troops will stay and for how long.

The $200 million order for housing in Iraq was tasked to KBR in Arlington, VA, on June 13 through a long-term contract called the Logistics Civil Augmentation Program.
* * *
The latest task order under LOGCAP is designated for V Corps: $200 million for “the setup and operation of all housing and logistics to sustain task force personnel.”

Dan Carlson, a spokesman for the Field Support Command, said the order would provide “temporary housing services” for 100,000 troops at various locations throughout Iraq. The housing structures might be just tents in some spots, Carlson said. However, more substantial housing facilities, including wood structures, could be built depending upon requirements in the area, he said. Plans have not been finalized, Carlson added.

Plywood structures, or “SEAhuts,” are commonly used by Army peacekeeping personnel elsewhere, including the Balkans. The name stands for “Southeast Asia huts” -- because they were used by soldiers in Vietnam -- and are regarded as suitable for “temporary operational use.”

Joan Kibler, a spokeswoman for the U.S. Army Corps of Engineers Transatlantic Program Center, which oversaw construction of SEAhuts in the Balkans, said temporary construction is defined more by the “length of the military operation than the strength of the structure.” If maintained properly, the SEAhuts can house soldiers for several years, or be dismantled, she said.

So far, the military has not built any living facilities for soldiers in Iraq beyond providing tents and a few “trailer-type” structures, according to a spokeswoman for the Coalition Forces Land Component Command at Camp Doha in Kuwait.

posted by Phillip Carter at 08:47

 
The ugly face of war
Embedded reports from the Marines' 1st Reconnaissance Battalion

A lot has been made of the reports that came from embedded reporters in the recent war with Iraq. For the most part, I think they did a good job of reporting on a part of war that has often been neglected for operational security reasons. Some reporters, such as the Washington Post's Rick Atkinson and William Branigin, and the LA Times' Tony Perry and David Zucchino, did a particularly good job of covering the units they were with. But until now, I haven't read any stories that hit me the force of some first-person accounts I've read.

Evan Wright's reports in Rolling Stone are different. For the entire war, Mr. Wright traveled with a platoon of the elite 1st Reconnaissance Battalion of the U.S. Marines. The 1st Recon Marines were not used as stealthy infantry scouts, the way such a unit might normally be employed. Instead, these Marines were employed like an Army light cavalry unit, fighting their way in Hummvees north from Kuwait to Baghdad. Mr. Wright reports on the entire journey of these men, over the course of three outstanding pieces in Rolling Stone magazine. Here's an excerpt from the second piece:

It's not a good day for god in Iraq. Lt. Cmdr. Christopher Bodley, chaplain for the First Reconnaissance Battalion, is trying to minister to fighting Marines, now resting for the first time since the invasion of Iraq began more than a week ago. They have set up a defensive camp by the airfield they seized near Qal'at Sukkar, in central Iraq. After their initiation into urban-guerrilla warfare in An Nasiriyah to the south, followed by three days of continual fighting against an enemy they seldom actually saw, the 374 Marines of the elite battalion have been given forty-eight hours of downtime to recuperate. Their camp is spread across two kilometers of what looks like a fantasy Martian landscape of dried-out, reddish mud flats and empty canals. Each four - to six - man team lives in holes dug beneath camouflage nets placed around its Humvee. Throughout the day, Bodley walks around the camp and attempts to minister to his flock of heavily armed young men. Although the Marines in First Recon have already killed dozens, accidentally wounded civilians and taken one casualty of their own (a driver shot in the arm), the chaplain encounters few troubled by war itself. "A lot of the young men I talk to can compartmentalize the terrible things they've seen," he says. "But many of them feel bad because they haven't had a chance to fire their weapons. They worry that they haven't done their jobs as Marines."

Bodley is new to First Recon, and he confesses that he finds these Marines tough to counsel. "The zeal these young men have for killing surprises me," he admits. "When I first heard them talk so easily about taking human lives, using such profane language, it instilled in me a sense of disbelief and rage. People here think Jesus is a doormat."

Over by Sgt. Brad Colbert's Humvee, the Marines lounge under the camouflage netting, enjoying a few idle hours on a hot afternoon. Cpl. Joshua Person, the team's driver, lounges with his shirt off, trying to roast the "chacne" -- chest zits -- off his skin in the harsh Iraqi sun. Gunnery Sgt. Michael Wynn, the senior enlisted man in Bravo Company's Second Platoon, stops by to pass the latest gossip. "Word is," he says in a mild Texas accent, "we might go to the Iranian border to interdict smugglers."

"F*ck, no!" Person says. "I want to go to Baghdad and kill people."

I hope that Mr. Wright takes this material and writes a book about the experience these Marines went through. I suspect his detached view would make a great companion to first-person accounts like that of Anthony Swofford in Jarhead. If he writes it, Mr. Wright's book will join Mark Bowden's Black Hawk Down on my bookshelf as two of the best journalistic accounts of war that I have read. Rolling Stone has also put the first and third articles online; I recommend them to anyone who wants to see the ugly face of war up close, without censorship.
posted by Phillip Carter at 08:54

 
Attacks on U.S. troops raise specter of guerilla war
Was an urban insurgency the Iraqi strategy all along?

Tom Ricks, probably the best defense reporter out there, reports today in the Washington Post (along with Rajiv Chandrasekaran) that Iraqi attacks on American troops in recent days have spurred concerns about the conflict that just seems to keep going in Iraq. Despite the declaration by the President that major combat operations have ended (see below), and the repeated declarations by Pentagon officials that we are not in a guerilla war, that seems to be exactly the case.

Recent Iraqi attacks on U.S. troops have demonstrated a new tactical sophistication and coordination that raise the specter of the U.S. occupation force becoming enmeshed in a full-blown guerrilla war, military experts said yesterday.

The new approaches employed in the Iraqi attacks last week are provoking concern among some that what once was seen as a mopping-up operation against the dying remnants of a deposed government is instead becoming a widening battle against a growing and organized force that could keep tens of thousands of U.S. troops busy for months.

Pentagon officials continue to insist that the U.S. military is not caught in an anti-guerrilla campaign in Iraq, that the fighting still is limited mainly to the Sunni heartland northwest of Baghdad and that progress is being made elsewhere in the country. "There's been an awful lot of work done," Air Force Gen. Richard B. Myers, the chairman of the Joint Chiefs of Staff, told "Fox News Sunday" in an interview taped last week. "A lot of the country is relatively stable."

But a growing number of military specialists, and some lawmakers, are voicing concern about trends in Iraq. There is even some quiet worry at the Pentagon, where some officers contend privately that the size of the U.S. deployment in Iraq -- now about 150,000 troops -- is inadequate for force protection, much less for peacekeeping. The Army staff is reexamining force requirements and looking again at the numbers generated in the months before the war, said a senior officer who asked not to be named.

"If you talk to the guys in Iraq, they will tell you that it's urban combat over there," the officer said. "They all are saying, 'What we have is not enough to keep the peace.' "

Keeping the peace is just one problem. Fighting the war is another. Peace and war are not like pregnant and not-pregnant -- it's not a binary choice. Conceptually, I think there's more of a spectrum from peace to war, along which you have law enforcement, peacekeeping, peace enforcement, low-intensity conflict, and war. (This isn't just my thought; it's also what official U.S. Army doctrine says.)

So what are we seeing in Iraq? I don't think we're just seeing criminal activity or the activity of out-of-work soldiers. I think we're seeing the start of a real guerilla war, in which we will fight a determined, well-equipped and organized enemy in the streets of Iraq for some time. Ricks' article alludes to this trend:

Retired Army Col. Richard Dunn, a former head of the Army's internal think tank, agreed, saying, "I'd like to be wrong on this, but we may be seeing a classic insurgency situation developing." At the same time, he said, it is possible that "we may just be seeing a surge of activity that they're unable to sustain."

Last week, 45 armed men began a concentrated assault against a U.S. convoy north of Baghdad. And attacks in the capital appear to be more effective.

In one incident, an Iraqi stood up in a moving car and fired a rocket-propelled grenade at an Army Humvee. In addition, snipers have been hitting troops in Baghdad. Over the weekend, one 1st Armored Division soldier guarding the National Museum was shot and killed, and another died in a similar attack at Baghdad University, in a neighborhood that had been considered quiet.

With the two weekend deaths, the U.S. toll grew to 209, including 70 troops killed since President Bush declared major combat in Iraq over on May 1.

Overall, some U.S. soldiers at fixed points such as road checkpoints and outposts say the attacks on them are far more widespread and persistent than is reflected in the casualty figures.

In contrast to the head-on charges that some Iraqi fighters launched against U.S. tanks in the war, the attacks now tend to focus on more vulnerable parts of the military, such as isolated checkpoints and slow-moving convoys, and not against strengths, such as armored units.

Analysis: What if this was their strategy all along? What if, instead of fighting America in the desert, the Iraqi command authority made a conscious choice to suck us into their cities and fight us 1 platoon at a time, with small-unit ambushes and such? This looks an awful lot like classic insurgency warfare; what some call 4th Generation Warfare. It reflects an old maxim most recently stated by Chinese leader Mao Zedong: "The reed bends with the wind, and then snaps back up again."

I do not think we're seeing low-level criminal activity anymore; I also don't think we're seeing uncoordinated attacks. I think that our enemy has coalesced into something larger and more menacing. Of course, I don't have the on-the-ground intelligence to make this assessment, nor do I have access to anything but open-source reports. But the tea leaves look clear to me. The Iraqis have strategically withdrawn from the desert and regrouped in the cities, and instead of fighting us where we are strong (the desert), they are now fighting us where we are weak. Their ultimate goal is to mimic Somalia. The Iraqis hope to inflict enough casualties on us that we will go home with our tail between our legs. Ultimately, this is a dubious strategy, given our national level of commitment to Iraq as compared to our commitment to Somalia. But in the short-term, it means that Iraqi guerillas will seek to kill as many Americans as possible wherever they present targets of opportunity.

If I were a planner again... I'd recommend three main courses of action:

(1) Boost the U.S. troop presence, because you're going to need a lot more boots on the ground in order to properly secure the American footprint in Iraq.

(2) Ratchet up the force protection level significantly, to the point where U.S. troops conduct their nation-building operations as if they are still at war. This will hamper and delay much of the nation-building, as it's more difficult to conduct business at rifle's length that an arm's length. But we cannot let our guard down like we have been in recent weeks.

(3) Go on the offensive, as we did with Operation Peninsula Strike and Operation Scorpion. Find the Iraqi guerillas, their weapons caches, and their leadership -- and take them out. Again, these offensives require more soldiers, because you have to have enough for basic security and offensive missions. But if you let the enemy seize the initiative, you're toast. We absolutely have to take the fight to these Iraqis before they take the fight to us, and fight them on terms favorable to us.

Update: I've been asked to comment on this issue and the situation in Iraq tomorrow morning between 9 a.m. and 9:30 a.m. on WCTC, New Brunswick, NJ (AM 1450). If you're in that area, I hope you can tune in.

Update II: David Adesnik at Oxblog has some thoughts on the relationship between stories like this and soldier morale. For what it's worth, I think that criticizing the mission and the cause can create a self-fulfilling prophecy of failure. We ought do that for the sake of the mission and our soldiers in the field. But I think we should recognize this conflict for what it is -- something in the gray area between peace and war -- and devote the resources necessary to win it.
posted by Phillip Carter at 08:36

 
Back from the holiday weekend... blogging will resume at my regular summer pace. Thanks for stopping by; more to follow.
posted by Phillip Carter at 08:20

 
You make the call...

May 1, 2003 -- Remarks by the President from the USS Abraham Lincoln At Sea Off the Coast of San Diego, California.

"Thank you all very much. Admiral Kelly, Captain Card, officers and sailors of the USS Abraham Lincoln, my fellow Americans: Major combat operations in Iraq have ended. In the battle of Iraq, the United States and our allies have prevailed. (Applause.) And now our coalition is engaged in securing and reconstructing that country."

Jul. 2, 2003 -- Press Conference by LTG Ricardo Sanchez, Commanding General, V Corps, Baghdad (as reported in the New York Times).

"We're still at war," Army Lt. Gen. Ricardo S. Sanchez, the commander of coalition forces in Iraq, said in a news conference today. While saying the attacks did not appear to be centrally or even regionally coordinated, he asserted that there had been an "increase in sophistication of the explosive devices used" against American forces.

Who's right? It's really hard to tell. The President is correct that major combat operations have ended, insofar as American tanks are no longer charging across the Iraqi desert. But it appears that we are now fighting a new kind (or a very old kind) of war -- a counter-insurgency campaign against hardened guerillas and terrorists who attack with unconventional weapons and tactics. I think LTG Sanchez is right to say the war has not ended -- it has merely begun a new phase. This phase will look a lot more like Somalia than Gulf War I, but hopefully with a better result. More to follow...
posted by Phillip Carter at 10:18

 
Hasta la vista, Saddam

USA Today reports that America has deployed Arnold Schwarzenegger to Iraq as part of a USO tour to visit American soldiers there and elsewhere in the Middle East. It's not clear whether Arnold will merely entertain the troops, or also lend his expertise as demonstrated in the movies Commando, Predator and Terminator.
posted by Phillip Carter at 09:16

 
Is America's Army broken?

The answer, according to Brookings Institute expert Michael O'Hanlon, is "yes". Writing on the op-ed page of today's Washington Post, O'Hanlon says the current operational commitments for the Army have all but sapped its ability to do anything else that might crop up -- like say, a deployment to Liberia. Without an authorization of additional soldiers by Congress, or a significant change in America's commitments abroad, the Army will not be able to deploy anywhere for some time.

This total of nearly 250,000 deployed troops must be generated from an Army of just over 1 million. The active-duty force numbers 480,000, of which fewer than 320,000 are easily deployable at any given moment. The Army Reserve and Army National Guard together include 550,000 troops, many of whom already have been called up at least once since 9/11.

Deployment demands are likely to remain great, even if Rumsfeld and Bush hope otherwise. The Pentagon is lining up 20,000 to 30,000 allied troops to help in Iraq come September, from countries such as Poland and Italy and Ukraine. Unfortunately, as recent events underscore, the overall mission will still likely require nearly 200,000 coalition forces. That means 125,000 to 150,000 U.S. troops could still be needed for a year or more -- with 50,000 to 75,000 Americans remaining in and around Iraq come 2005 and 2006 if past experience elsewhere is a guide.

As a result, a typical soldier spending 2003 in Iraq may come home this winter only to be deployed again in late 2004 or 2005. The typical reservist might be deployed for another 12 months over the next few years. These burdens are roughly twice what is sustainable.
* * *
It would be the supreme irony, and a national tragedy, if after winning two wars in two years, the U.S. Army were broken and defeated while trying to keep the peace. Unfortunately, the risk that this will happen is all too real.

Analysis: O'Hanlon offers some suggestions to fix the mess, like "Make a higher percentage of Army troops deployable" or "Approach a broader range of allies, especially larger countries such as France and Germany and even Japan and South Korea, for substantial troop contributions." I've been saying this for some time too. But these prescriptions are easier said than done. The short-term fix is probably to lean on our allies to provide some additional soldiers for our commitments in places like the Balkans and Iraq. But that will require our compromise on some of our strategic goals, since our allies may not see entirely eye-to-eye with us on every single issue. Given a choice between that, and a broken Army, I would choose the former. Our world is too uncertain for America to face with a force that needs 2-3 years to rebuild itself. We must start posturing now for the threats we can see, and those we can't see, and that means rebuilding our military capacity to deploy as rapidly as possible.
posted by Phillip Carter at 09:12

 
White House plans new aid push for Afghanistan

Elaine Grossman reports in Inside the Pentagon that the Bush Administration has decided to boost the aid it's giving to the infant nation of Afghanistan. The boost will include more money, as well as additional American boots on the ground. Presumably, this comes in response to a deteriorating situation in Afghanistan, which many critics have attributed to a lackluster U.S. effort there to secure and rebuild the country.

Concerned that hard-won security and political successes in Afghanistan may be at risk without fresh support, the Bush administration's national security team is crafting what officials describe as a major new aid initiative to bolster that nation's central government in Kabul, Inside the Pentagon has learned.

The move may amount to tacit recognition of global concern that, without additional U.S. support and leadership, Afghanistan could be on the brink of sliding back into its former condition as a lawless haven for terrorists and drug-smugglers, regional experts say.

The Bush plan -- likely to be unveiled publicly in the next three to five weeks -- will include beefed-up security assistance for President Hamid Karzai's fledgling national army, as well as increased investment in Afghan reconstruction, according to U.S. government officials. But these sources were reluctant to characterize how much the aid package would be worth, saying Defense and State Department officials are negotiating how much funding should be allocated to different projects.
* * *
As many promises of “fresh resources” remain undelivered, Afghans are instead seeing fresh challenges, experts say.

“The security situation in Afghanistan is starting to seriously unravel,” said one aid worker earlier this year. “Continued banditry and firefights plague many of the provinces.” Many officials express concern that elements of the former Taliban ruling regime and the al Qaeda terrorist network are newly organized and resurgent in the nation.

One part of the Bush initiative that has been in the works for some time -- and now folded into this new package -- is a plan to boost the quantity of “provincial reconstruction teams,” or PRTs, the Pentagon fields in Afghanistan, U.S. officials say. Eight of these teams -- composed of civil and military officials charged with undertaking small reconstruction projects around the nation -- were initially planned for deployment.

Now the number is expected to total 12 to 20 PRTs. “That decision is made,” said one defense official, saying the principal Cabinet members for national security have approved the concept. The role of these teams may also slightly expand, this official said. U.S. Central Command is expected to forward a recommendation to the Pentagon about precisely how many teams are needed, and how the teams might be made “thicker,” in the words of another U.S. government official.

posted by Phillip Carter at 09:05

 
Happy 30th Birthday, All-Volunteer Military

America's military celebrates an important birthday this week -- the 30th anniversary of its transformation from a conscription-based force to an all-volunteer force. For a generation now, America's finest sons and daughters have volunteered for military service instead of being pressed into service by force of law. The change has been spectacular. America's military could not train, deploy and fight as it does if not for the high caliber of people in the ranks. Gadgets don't win wars -- people do.

Thirty years ago today - a full generation back - the United States put the military draft behind it.

Gone at a stroke were the letters to young men that began "Greetings from the President of the United States." Gone were the uncertainty, the lotteries, the physicals, the scramble for deferments, the social discord. Ever since July 1, 1973, the Army has been an all-volunteer outfit. Barring a major war, the Army is expected to stay that way. The shift has given the nation a more professional Army. But the societal tradeoffs remain open to argument.

From a strictly military point of view, the all-volunteer Army is a vast improvement.

"The soldiers today are better-trained, better-motivated and have fewer disciplinary problems," says retired Lt. Col. Frederick Chiaventone of Weston, Mo. "And they're brighter."
* * *
Beyond the bigger slice of women, today's Army looks a lot different from the Army of 1973. Among other things, today's Army:

Needs fewer recruits (73,000 a year now, 198,000 then). As Pittsburgh's Karsten puts it, "It can be more selective."

Is smarter, with most recruits holding a high school diploma.

Shows more stability because it has more career soldiers - the sort who want to stand out and get ahead. Old soldier Rogge recalls that in contrast, "Lots of draftees didn't care whether they did a good job or just got by."

Packs along more spouses. Almost half of today's Army is married - some of them raw recruits. Ex-Lt. Col. Baker signed on in 1965, "and back then, it was hard to find anybody below the rank of sergeant who was married."

Musters more African-Americans as enlisted soldiers (29 percent now, 14 then) but has fewer blacks in combat jobs.

Displays a much narrower socio-economic range.

"It's largely a working-class Army, a blue-collar Army," says Kohn.

Chiaventone recalls that the ranks in his 1973 Army "had a greater variety across the entire spectrum. You had some college graduates - and you also had kids who were there to stay out of jail."

Fort Leonard Wood sits in the congressional district of Rep. Ike Skelton, D-Mo. "Walk down the line at the rifle range there," says Skelton, the senior Democrat on the House Armed Services Committee. "Ask the recruits where they're from.

"The majority are from small towns, rural areas, the inner city. Very few are from the suburbs. And that concerns me." The significance: Few from affluent families serve.

Kohn puts it this way: "The all-volunteer Army raises the uncomfortable problem of having an Army that begins to look, from an economic point of view, like a Foreign Legion."

Analysis: Earlier this year, Rep. Charlie Rangel suggested a return to the draft for a variety of reasons. Some were flatly political -- he wanted to embarass the members of Congress who called for war without a personal stake in the venture. But he also wanted to return to the days where Americans shared the burdens of military service, and felt the sacrifices. I think that's a noble goal. But it's not the ultimate goal of the military. We have a military to fight and win our wars, and also to prevent war by deployments such as those in Bosnia and Kosovo. Our military is not a social experiment, nor is it a way to promote national bonhomie or civic pride. I agree that military service does promote those things, and most veterans have a certain sense of patriotism that non-veterans can't themselves enjoy. But that's not a good enough reason to resume the draft, and destroy the hard-won gains of our professional military.

There are problems that stem from the existence of an all-volunteer force; these must be mitigated. A professional force may separate itself from civil society, in order to promote the martial virtues necessary for military success. We mitigate this by encouraging short-term enlistments (like mine), where citizen-soldiers rotate through the military for a few years at a stretch.

A professional force also has the potential to become a mercenary force. This has not occurred yet, but it may occur someday if America becomes sufficiently distanced from its military so as to cavalierly send it into harm's way. Our military could also become a mercenary force if it divorced itself from the Constitutional ideals of our nation, or the norms and values of American society. The constant rotation of junior personnel through the ranks makes this unlikely, as does the oath of office sworn to by every soldier and officer. But it is a danger we should be cognizant of.
posted by Phillip Carter at 09:16

 
Why Lawrence may have an effect on the military
A partial response to Jacob Levy of the Volokh Conspiracy

Jacob Levy writes a lot of things in his post on the military. It's clear at the outset that there is room for disagreement between reasonable and intelligent people on this issue. Notwithstanding that, I think he's wrong about a few things.

1. The Uniform Code of Military Justice isn't precisely the issue here; 10 U.S.C. 654 is. Nonetheless, I have some issues with the way he characterizes the UCMJ. First, he writes that "The internal governance of the military isn't quite a black box as far as constitutional law is concerned; but it's very close." That's not exactly right. For starters, the UCMJ is subject to the constraints of the U.S. Constitution. Criminal adjudications under the UCMJ are reviewable by the U.S. Court of Appeals for the Armed Forces, a court which has the same stature (although not the same prestige) as any Art. III appeals court. Military convictions are subject to the same Constitutional rules that civilian convictions are, and indeed, many are overturned in the military context.

1a. He also writes that "The Uniform Code of Military Justice authorizes court-martial and other internal legal proceedings that are very clearly not as advantageous to defendants as the (currently-interpreted-) Constitutional minumum for civilian trials." It's also unfair to say the military system is more punitive or less fair than the civilian system. In many ways, the military system is more fair than the civilian system because it must compensate for the overarching coercive nature of the military environment. For example, the military privilege against self-incrimination is substantially stronger than that in the civilian world, and indeed was cited in the Court's Miranda decision as a model for the protections articulated by the Court in that decision. (For more on this, see my piece in Writ at Findlaw.Com on the military justice system.)

2. The UCMJ exists in Title 10 as a creation of Congress; it's codified in Chapter 47 of Title 10 in the United States Code. However, Congress has delegated the administration of the UCMJ to the President, and executive branch attorneys actually revise the UCMJ every two years and promulgate the rules of evidence and procedure that go along with the actual punitive articles. There is a great deal of deference to the UCMJ because it is very much an executive-branch creation; a product of the respective service JAGs.

3. 10 U.S.C. 654, on the other hand, is somewhat different as a matter of law and politics. It is a creature of Congress, not the Pentagon, and can only be changed by Congress or the courts. As a federal statute, it is due the deference that the Court would give to the political branches on any legislative matter. It may also be due some Constitutional deference in accordance with the delegation of powers in Art. I, Sec. 8: "To make Rules for the Government and Regulation of the land and naval Forces." I don't think it's a slam dunk to say this is a matter of national security and military deference, therefore the courts will defer. For starters, it's not clear whether this ban is in America's national security interest. (See, e.g., the discharge of Arab-speaking linguists from the Defense Language Institute earlier this year) Second, it's not clear that a statute like this will receive the same deference, given its legal context and legislative history, as a regulation promulgated directly by the Pentagon. Third, I'm not sure that this policy will get the 100% backing of the Pentagon today.

4. I cited to Goldman v. Weinberger for exactly the opposite proposition that Jacob points out, with help from a couple of other cases like Rostker v. Goldberg. The point is that the military is allowed to make certain regulations that do not heavily burden the exercise of fundamental rights. The military can burden such rights on the margins, such as requiring Jewish soldiers to wear earth-tone yarmulkes or shave their beards in order to achieve a proper seal with their M40 protective mask. But it cannot flatly tell these servicemembers not to engage in their conduct. In other words, a little burden is okay; a big burden is not. The military has gotten away with burdening fundamental rights in a small way, and it has been deferred to by the courts. But it may not get such deference when it heavily burdens fundamental rights that have been recognized by the court.

This is somewhat of a slippery slope problem, on which I am grateful to Eugene Volokh's thoughtful piece in the Harvard Law Review. (Full disclosure: I'm still trying to understand the full argument of Eugene's article) However, the point is that the military's conduct may be okay at one point on the slope, while not being okay at a subsequent, lower point on the slope. As I understand fundamental rights analysis, the extent of the burden plays some role in determining the outcome. To the extent that the policy on gays burdens the rights of gays much more heavily than any other military policy does with respect to a fundamental right, this policy may be struck down.

5. Jacob writes that the military policy does not directly prohibit sodomy, and since that's what the Supreme Court recognized, the Supreme Court's decision does not directly delegitimize the military's policy. I can see this point, but I think it's wrong as a matter of Constitutional law. For starters, Justice Kennedy's opinion did not just strike down the Texas sodomy statute; it recognized a fundamental right of intimate conduct for homosexual persons. The fundamental rights analysis does not require an exact fit between the facts of Lawrence and the facts of a military case in order to work. Once the Court recognizes a fundamental right, the analysis works quite differently. The burden shifts to the government to show a compelling interest for its policy which burdens the right, and that the policy is narrowly tailored to that compelling interest. The right recognized by the Court was not just sodomy -- it was "intimate conduct". 10 U.S.C. 654 may not directly speak to sodomy per se, but it certainly speaks to "intimate conduct" of homosexual persons.

Thus, I believe this policy cannot stand as a matter of Constitutional law. But as I said before, this is an area where reasonable people can disagree, and it's certainly no slam dunk.

Update: Jacob has a response at the Volokh Conspiracy, which he slyly calls a "couple of quick rejoinders". Hah. Remind me never to pick an intellectual fight with an academic again. Jacob has a long and well-researched note that I frankly don't have time to respond to. Even if I could, it looks like he's probably right on some of the important legal issues that will decide this fight in the courts. I may write on this later, if I get some time after work tonight or tomorrow. But until then, it's back to the salt mines (law firm) for me. . .
posted by Phillip Carter at 22:38

 
Will Lawrence have any effect on the military?

Jacob Levy thinks I'm wrong (along with Mark Kleiman) about Lawrence and gays in the military. He shares his reasons why at the Volokh Conspiracy. I agree with some of his arguments, but disagree with his conclusions.

More to follow tonight ...
posted by Phillip Carter at 15:55

 
'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.

posted by Phillip Carter at 08:44

 
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.
posted by Phillip Carter at 08:57

 
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.
posted by Phillip Carter at 08:39

 
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.
posted by Phillip Carter at 08:21

 
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.
posted by Phillip Carter at 07:31

 
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.
posted by Phillip Carter at 15:44

 
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...
posted by Phillip Carter at 07:24

 
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...
posted by Phillip Carter at 21:14

 
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.
posted by Phillip Carter at 20:49

 
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.
posted by Phillip Carter at 08:58

 
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...
posted by Phillip Carter at 08:44

 
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.
posted by Phillip Carter at 21:51

 
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.
posted by Phillip Carter at 21:46