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Tuesday, September 30, 2003
Guantanamo investigation nets another suspect

The AP reports that a third person was arrested this morning on suspicion of espionage in connection with the American military prison at Guantanamo Bay, Cuba. Ahmed Mehalba joins Airman Ahmad Halabi and CPT Youssef Yee as the latest suspect in an investigation that appears to have unveiled a secret network of Syrian agents at Guantanamo, though the details are extremely sketchy at this point.
Defense Department officials described Mehalba as a civilian contractor who provided translation services, but it was unclear if he had fulfilled his contract or was still working at the camp.

Agents with Customs and Border Protection noticed documents that appeared to have come from the prison camp and that they suspected of being classified. The FBI was called in to interview Mehalba, who denied the documents were his, the official said.

After the interview, the FBI arrested Mehalba on charges of making false statements. He was being held in Boston and further charges are possible, said the official, who declined to describe the nature of the documents in Mehalba's possession.

Boston attorney Michael Andrews was appointed to represent Mehalba by U.S. Magistrate Judge Charles B. Swartwood. Mehalba was to make an initial court appearance later Tuesday, Andrews said. Andrews said he had not met his client and had not been informed of what he is charged with or any of the circumstances of his arrest.
Analysis: There are some really interesting legal issues already in this case. First, Mehalba is not a soldier -- he's a civilian. Thus, he can't be charged in the military system like Halabi and Yee, nor can he be executed for espionage as a soldier could. (There is a remote option of trying a civilian under the UCMJ in time of war, but I rate this as extremely unlikely) If Mehalba were charged with treason, in theory, he could be put to death. But there's nothing in this story to suggest that will happen, and it's extremely unlikely that his offenses rose to the level required for a Constitutional charge of treason. (See Stop the Bleating for more on this subject)

The second interesting legal issue is the choice of forum for these charges. It appears, from this AP report, that federal prosecutors are moving forward in federal court with a criminal prosecution. The President has not designated Mehalba as an "enemy combatant," nor has he transferred him to military custody. Those two things remain an option, as was done after the initial court appearances in both the Padilla and al-Marri cases. But given the political flak associated with such decisions, I think this is also unlikely. Federal prosecutors may use the threat of "enemy combatant" status in their plea bargaining negotiations, as they did in the "Lackawanna Six" case according to several media reports. But I think we'll see this man tried in federal court if the time comes for a trial of some kind.

More to follow...

Monday, September 29, 2003
The "BYOB" War
Reservists issued Vietnam-era flak jackets forced to purchase their own body armor

Jonathan Turley, a GW law professor with whom I typically don't agree, has an outstanding essay on the op-ed page of today's Los Angeles Times about one of his students who's been sent to Iraq as a reserve MP. The soldier was issued a Vietnam-era flak vest upon mobilization. This vest will stop shrapnel and other effects from indirect fire, but is basically worthless for stopping direct fire from small arms. This, despite the procurement of new "Interceptor" body armor for most of the active force, which has been proven to save lives in Afghanistan and Iraq. Turley writes that this is a travesty, and I agree.
The greatest shortfall in vests and plates appear to be National Guard and reserve units, though full-time soldiers like Byrd also have reported shortages. Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, confirmed last week that it would not be until December before there were enough plates for all of our people in Iraq.

Murphy's reserve unit, which initially had no modern jackets, was eventually given some Interceptor vests weeks after they arrived in Iraq, but even then the new vests were missing the essential ceramic plates. That is when Werfelman went out and bought some plates for $650 — more than her weekly salary — and sent them to her son so he'd have basic protection. Workers at one armor company she called said that they had been deluged with calls from parents trying to buy vests and plates for their sons and daughters overseas.

Of course, many soldiers do not have even empty Interceptors. When they have received plates from home, they have reportedly used duct tape to attach them to the backs of their flak jackets.

This is a dangerous practice, according to William "Butch" Hancock, who recently retired from the Army after 30 years and currently consults for Point Blank, a body armor manufacturer. He says that some of these plates are designed for front pockets and will not work in such circumstances.

In speeches, President Bush has attributed the record federal budget deficit, in part, to his insistence that U.S. soldiers have the resources they need: "My attitude is, any time we put one of our soldiers in harm's way, we're going to spend whatever is necessary to make sure they have the best training, the best support and the best possible equipment." When Bush later taunted gunmen in Iraq to "bring it on," many GIs must have nervously tugged at their obsolete flak jackets.

For many GIs, Iraq appears to be a strictly BYOB war — Bring Your Own Bulletproofs.

The shortages come down to money and priorities. In 1998, Interceptors were available and issued to armies around the world. However, the U.S. military treats the replacement of body armor as any other "general-issue item." Thus, five years ago the military brass decided to implement a one-for-one exchange of new-for-old vests over a 10-year period. The military recently moved to increase production. The belated priority given to replacing the vests is particularly shocking considering their performance in Afghanistan, where they are credited with saving the lives of 29 soldiers. This is why American mothers are mailing armored plates rather than the traditional baked goods.

It is unclear how we got into this predicament, but it is worthy of a congressional investigation — particularly when it comes to the failure to equip all military units with the modern vests before the Iraq war. After all, the military brass appears to be spending in other areas.
Analysis: Procurement of basic soldier items has been a problem for the Army since its inception during the Revolutionary War. Logistics is hard stuff, and procuring materiel for soldiers to wear/use in combat has always been difficult. That said, we spend an enormous amount of money every year to buy the military what it needs (and sometimes what it wants). There's no excuse for failing to procure Interceptor body armor for every soldier and Marine on active duty -- and every reservist mobilized for duty in a combat zone.

And it's not just the body armor. We've also seen similar shortages of other critical items too, from spare Hummvee tires to Bradley tracks to SINCGARS radio batteries. Our soldiers initially deployed to Afghanistan with lousy boots that fell apart on the rocky mountains of that country. (Look at pictures from 2001/02 and you'll see 100mph tape around the boots of many soldiers.) Some of my friends in Afghanistan and Iraq have spent thousands of dollars at REI.Com to outfit themselves and their soldiers with the best outdoor equipment money can buy, such as high-altitude stoves to stave off cold-weather casualties in the mountains of Afghanistan. I think it's a travesty that a soldier would have to spend his or her own money on mission-essential equipment when we spend $400 billion a year on defense.

Prof. Turley is right -- this boils down to priorities. If the Pentagon wanted to buy Interceptor body armor for every servicemember on active duty, it could. But it chose not to, by making a phased purchase of this product over time for pieces of the force at a time. Then the department made a second choice, which was not to take the armor from some non-deployed elements and shift it to those units in contact now with the enemy. Then the Pentagon made a third choice, which was not to immediately jumpstart procurement of these vests in 2002 when it became clear we were going to invade Iraq. These choices reveal a dangerously skewed sense of priorities for the procurement executives in the Pentagon, who would place programs like missile defense and aircraft carriers above the lives of our soldiers and Marines.

One caveat: these priorities know no political allegiance. Ike may have been the first president to warn us of the military-industrial complex, but this complex has exercised its grip on Democratic and Republican administrations alike since then -- as well as their counterparts in Congress. The Interceptor program dates back to the Clinton Administration, and its officials were the ones who chose the phased purchase instead of a bulk purchase. Of course, the Clinton White Hosue didn't anticipate in the late 1990s that we would fight a second Gulf War in 2003 with nearly our entire Army and Marine Corps. But I think it's fair to say that the force that won the war in Iraq was largely the force procured and trained by previous administrations, so the blame belongs to more than just the current administration.

Notwithstanding that fact, the problem exists now. Our soldiers are in harm's way now. There is no excuse for failing to equip our soldiers with this kind of basic equipment.

Update: See also this New York Daily News article on the body armor issue, courtesy of Military.Com.
"I can't answer for the record why we started this war with protective vests that were in short supply," Army Gen. John Abizaid, chief of the U.S. Central Command, told Congress last week.

Abizaid asked for quick approval of President Bush's request for $87 billion in new funding for Iraq and Afghanistan, which would include $300 million for body armor and $177 million to upgrade Humvees with chassis armor.

With funding for new vests, Abizaid said, "I can tell you that by November, every soldier that's serving in Iraq will have one."

The military had no estimates of how many G.I.s lacked the new vests, which cost $517 each, about $100 more than the old variety. But Abizaid did not argue when House members - waving letters from angry constituents with sons and daughters in Iraq - charged that as many as 30,000 troops in the region were without the latest model.
November, huh? I'd really like to walk the cat back on this issue, to see exactly when these emergency orders were placed. Presumably, some logistician should have forecasted this issue in late 2002 when we were doing our operational planning for Iraq. This shortfall should have been identified, forwarded to higher headquarters, and dealt with. If that was done, and it has taken the contractor a year to produce this many vests (not impossible given production line issues and materials issues), I think the Pentagon has probably made a good faith effort to remedy this problem. But if these requisitions weren't made until sometime this year, or worse yet, until after the war ended, then this is not a good news story.

Sunday, September 28, 2003
Q: What's the most important part of the war on terrorism?
A: It's the part fought by lawyers and accountants, not soldiers

Josh Meyer has an outstanding piece on the front page of today's Los Angeles Times that looks at America's success (or lack thereof) in prosecuting the financial part of the war on terrorism. As I've written before, this part is absolutely critical because global financial networks are what give terrorists the ability to move men, materiel, and money around the world. In essence, these networks give power projection capability to groups like Al Qaeda, transforming them from local thugs to global terrorists. Mr. Meyer reports that the work is not going as well as America might like.
Two years after Al Qaeda paymasters helped fund the Sept. 11 attacks from Dubai, one senior U.S. Treasury Department counter-terrorism official says this modern financial crossroads of the Middle East, Africa and Asia remains "a central switching station" of banks, money changers and gold and diamond traders through which terror organizations move cash.

Many countries believed to be at the epicenter of Al Qaeda's re-emerging network — including Afghanistan, Yemen and Somalia — are at best years away from establishing the financial and legal infrastructures needed to freeze terrorist assets or gain intelligence on how cells are raising, moving and spending money, say U.S. officials and their counterparts in other countries.

Away from the front lines, the effort to build a global coalition to staunch the flow of funds has suffered political, legal, cultural and technical setbacks so serious that some authorities fear it could fall apart. Many Middle Eastern and European countries, including Germany and France, have disagreed with the Bush administration over such basic questions as the definition of terrorism and what constitutes the financing of terrorism.

Nearly all of those who were identified by the U.S. government in the weeks after the Sept. 11 attacks as suspected senior financiers of Al Qaeda remain free, without ever having been detained or charged by foreign governments, and off limits to U.S. officials who want to question or arrest them.

Many other suspected financiers of Al Qaeda, other groups designated by the United States as terrorist organizations, such as Hamas and Hezbollah, and dozens of regional affiliates have simply gone deeper underground or changed to tactics such as using human and animal couriers to move large volumes of cash, officials say. Others have flocked to "soft spots," or countries and cities they have identified as having little scrutiny over their front companies, charities, relief organizations and banks, officials said.

"Two years after we started all this, we don't have a clue, really, as to how they raise their money, how they move it or where it goes," one U.S. official said of Al Qaeda, Hamas and Hezbollah.
* * *
There have been many successes since President Bush signed Executive Order 13224 on Sept. 23, 2001, authorizing sweeping new powers for the Treasury Department and other agencies.
* * *
But nearly all of the asset freezes occurred in the first few months, a sign, officials say, that the money has shifted elsewhere and that many countries have overlooked or refused to freeze suspected terrorist funds. Now, senior U.S. officials acknowledge, other complications have arisen.
Analysis: Surely, one major obstacle has been the general level of international support for America in its war on terrorism. After Sept. 11, America could do no wrong in the world. Even Arab countries were willing to look the other way when we launched Operation Enduring Freedom in Afghanistan, understanding that it was necessary to excise the cancer of terrorism from that failed state. However, I believe we have squandered our international political capital since Sept. 11, and that this has cost us the ability to do what needs to be done in the financial arena. Mr. Meyer's article bears that out.

Saying this will land me in hot water, but I think there is some unfortunate irony here. Our campaign in Iraq was designed to open a new front in the war on terrorism. However, this campaign cost us dearly in world support, and that decline in world support now appears to be impeding other fronts in the war on terrorism. It's very likely that we have lost ground in this financial aspect of the war, and that those losses owe directly to our intransigence on the world stage. In an indirect way, our war in Iraq is frustrating the war on terrorism, and in net-assessment terms, it may actually be aiding terror networks abroad.

Moreover, our "flypaper strategy" in Iraq actually helps Al Qaeda remain a viable organization in at least four ways:

(1) First, this strategy, helps Al Qaeda raise money. The American occupation of Iraq inflames Arab opinion. It will help Al Qaeda raise money from moderate and radical Arabs for charitable and terroristic operations -- money which is fungible and highly moveable between the two operations. Furthermore, our war in Iraq will increase Al Qaeda's ability to recruit sympathetic persons around the world who are willing to move money around the world through the hawala system or other informal means.

(2) Our war in Iraq also helps Al Qaeda build its logistical support infrastructure. A moderate Arab may not hate the U.S. enough to be a terrorist himself, but he may not mind letting them use his address for a visa, or store something in his warehouse. To the extent that our war inflames opinion among moderate Arabs and others against the United States, it will increase the number of people willing to lend discrete support for Al Qaeda. Such support may not include actual participation in a terrorist act, but it doesn’t need to. Simply providing logistical support to Al Qaeda enables it to be a global terror network. The ability to move men and materiel across borders is a key component of Al Qaeda’s organizational strength, and this ability will likely benefit from our war in Iraq.

(3) The war in Iraq will also produce a generation of trained guerilla fighters for Al Qaeda to recruit as terrorists. One reason for Al Qaeda’s lethality today is its skill base, which was gained through combat in Afghanistan, Sudan and Somalia, among others. The current guerilla war in Iraq is being fought in a complex operational environment, against a determined and sophisticated adversary (the United States and Britain). Moreover, these guerillas are learning the art of terrorism as theater, with legions of reporters and non-governmental organizations present to witness their actions. Just as Afghanistan and other conflicts provided training for Al Qaeda’s recruits in the 1980s and 1990s, so too may Iraq provide the boot camp for terrorists in the 21st Century. Indeed, these fighters may form the new cadre for Al Qaeda to replace the fighters we have killed or captured in Afghanistan.

(4) Finally, success breeds success. Al Qaeda depends on the conduct of "spectacular" operations for recruiting, financing, and other sustenance needs. Iraqi insurgents (possibly aided by Al Qaeda) have been able to successfully hit American and British forces in Iraq over and over again, producing casualties and frustrating the rebuilding effort there. These successes are much easier won than spectactular operations such as Kenya or 9/11, and they are probably helping Al Qaeda sustain itself in the Arab court of public opinion.

Before our soldiers and Marines crossed the line of departure into Iraq, the following question was raised on a military-officer listserv that I participate in:

Does an American invasion of Iraq --
(a) Make a terrorist attack on America more likely
(b) Make a terrorist attack on America less likely
(c) Maintain the same probability of a terrorist attack on America.

Our consensus was that (b) was certainly wrong, and that the right answer had to be (a) or (c). Today, six months after the war's start, I still think that's true. It's still too early to tell whether terrorists will leverage our campaign in Iraq to launch a terrorist attack on the United States, at least beyond the terrorist attacks they're launching daily against our soldiers there. And it's hard to tell how much our counter-terrorism/anti-terrorism measures have done to prevent another attack. However, I remain convinced that another attack is likely, and that we not let our campaign in Iraq distract us from the real threat to American security: terrorism.

Update: Donald Sensing points me towards a very interesting brief from the Congressional Research Service titled "Al Qaeda After the Iraq Conflict", dated May 23, 2003. CRS terrorism specialist Audrey Kurth Cronin concludes that Al Qaeda remains a serious threat to American interests despite the Iraq and Afghanistan campaigns:
Most believe that the denial of safe havens and arrests of senior leaders have seriously crippled the organization when judged by its earlier form. However, it may be evolving into something new. For terrorist groups, periods of evolution can be particularly dangerous. Organizations in transition can be especially vulnerable to disruption and destruction, but they can also be less predictable and prone to lash out in order to cause additional damage, rally flagging supporters, and/or prove their continuing viability. With respect to Al Qaeda, evidence of new sophisticated operations, a possible succession plan in action, central coordination of attacks, and growing international ties, all increasingly converging on a common international agenda hostile to the United States and its allies, may give U.S. officials new reason for concern. In the short term at least, even successes in counterterrorist operations against a more decentralized organization can lead to greater difficulty in collecting reliable intelligence, as the paths of communication are increasingly unfamiliar, the personalities are changing, and the locations of operatives are more diffuse. While the long term trajectory is very difficult to assess, for the time being it seems that Al Qaeda (or its successors) has emerged from a period of inactivity and remains a very serious threat, requiring concentrated attention and vigorous countermeasures on the part of its prospective targets. [emphasis added]

Justice Department begins investigation of the Plame affair
Before the dust settles, this probe could claim a West Wing casualty

The Washington Post reports today on a subject that Mark Kleiman and Josh Marshall have been reporting for months -- the likelihood that a senior administration official intentionally disclosed the identity of CIA officer Valerie Plame to the media in retaliation for her husband's statements about uranium in Niger. Ms. Plame's husband, Amb. Joseph C. Wilson IV, was the individual dispatched by the Bush Administration to confirm/deny British intelligence regarding uranium in Africa -- the reports that led to those 16 little words being inserted in the President's State of the Union speech to add imminence to our reasons for attacking Iraq. Now, the Post reports, the Justice Department has launched an investigation into the leak of Ms. Plame's name and identity, which is a crime under federal law.
At CIA Director George J. Tenet's request, the Justice Department is looking into an allegation that administration officials leaked the name of an undercover CIA officer to a journalist, government sources said yesterday.

The operative's identity was published in July after her husband, former U.S. ambassador Joseph C. Wilson IV, publicly challenged President Bush's claim that Iraq had tried to buy "yellowcake" uranium ore from Africa for possible use in nuclear weapons. Bush later backed away from the claim.

The intentional disclosure of a covert operative's identity is a violation of federal law.

The officer's name was disclosed on July 14 in a syndicated column by Robert D. Novak, who said his sources were two senior administration officials.

Yesterday, a senior administration official said that before Novak's column ran, two top White House officials called at least six Washington journalists and disclosed the identity and occupation of Wilson's wife. Wilson had just revealed that the CIA had sent him to Niger last year to look into the uranium claim and that he had found no evidence to back up the charge. Wilson's account touched off a political fracas over Bush's use of intelligence as he made the case for attacking Iraq.

"Clearly, it was meant purely and simply for revenge," the senior official said of the alleged leak.
Analysis: Josh Marshall and Mark Kleiman really have the best coverage on this, along with Kevin Drum and Atrios. I can't add much to what they've already done. However, I will say this screams for an independent prosecutor -- and possibly even a Senate select committee investigation. If the allegations here go as high on the Executive Branch food chain as they seem to, the situation may simply be too politicized for the Justice Department to deal with. I have no doubt that the working FBI agents and federal prosecutors on this case will have the integrity to do the right thing -- whether they vote Republican or Democrat. However, I fear that their politically appointed bosses may feel pressure from the administration. Recognizing the basic fallibility of appointed officials who are beholden to their President, we should remove this from those appointees' hands.

The citation for the federal law here is 50 U.S.C. 421, and was passed as the Intelligence Identities Protection Act of 1982. It states:
Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than ten years, or both.
If a senior administration official did call a Washington journalist, presumably not cleared to receive Top Secret information about CIA operatives' names, and did reveal the name of that operative, then that senior administration is guilty of violating this law. If we're going to throw the book at CPT Youssef Yee and Airman Ahmad Halabi for espionage, then I think we should do the same thing here to this senior administration official.

Saturday, September 27, 2003
Airman Halabi's lawyers take the offensive

The Los Angeles Times reports that military lawyers for Airman Ahmad I. Al-Halabi have released details about his case, and explanations for some of the allegations against him. Al-Halabi is being held, along with CPY Youssef Yee, on capital charges connected to alleged acts of espionage at Guantanamo Bay, Cuba.
In their first detailed account previewing Al-Halabi's defense, the lawyers also lashed out at the Air Force for subjecting him to secret military hearings at Vandenberg Air Force Base in California, and for refusing to let the 24-year-old senior airman speak in Arabic to members of his family. Air Force officials have expressed fear he might be passing on classified information.

The highly unusual defense statement comes as an Air Force general at Al-Halabi's home station, Travis Air Force Base in Northern California, prepares to make a decision on whether to send the young enlistee to a general court-martial. If convicted on charges of espionage and aiding the enemy, he could receive the death penalty.
* * *
. . . the Syrian government has protested that Al-Halabi was not working on its behalf, and his military defense team — Maj. James Key III and Maj. Kim E. London, both at Travis Air Force Base — suggested in a joint statement Friday that their client is not being treated fairly.

"Al-Halabi deserves a fair and public hearing and trial, just like every American is entitled to," they said.

They said his service record describes him as a "star performer for the Air Force," and they noted that he was quickly promoted to senior airman and recognized as "the 60th Supply Squadron Outstanding Airman of the Year for 2001."

"Senior Airman Al-Halabi had just finished a nine-month tour at Guantanamo Bay," they said. "He was on his way back to his home base [Travis] in July 2003 when he was arrested by agents from the Air Force Office of Special Investigations during a layover in Jacksonville, Fla.

"He did have tickets to fly to Syria a few days later out of California, where he was going to meet with his family for a wedding ceremony in Damascus. The wedding had already been postponed because his tour in Cuba had been extended two or three times," the attorneys said.
Analysis: One thing this story does is give lie to the myth that military defense lawyers don't do their job as defense counsel. I have argued for some time that military defense attorneys tend to do a better job than their civilian public defender counterparts. For one, they're better resourced. Second, they tend to have more experience -- both as a defense attorney and as a prosecutor. Third, they usually understand the system quite well. However, I think it's really interesting that these lawyers are launching a public relations offensive on Airman Halabi's defense. If I had to guess, I'd say they're trying to raise the stakes for the government in order to apply pressure that might lead to a plea bargain. And if these facts are true, they just might succeed.

Friday, September 26, 2003
Moussaoui inches one step closer to a military commission

The Justice Department said yesterday in a court filing that it would not oppose "20th hijacker" Zacarias Moussaoui's motion for dismissal of charges levied against him in U.S. District Court, according to the New York Times. The move comes at a time when Moussaoui is seeking access to other terrorists being held in custody by the U.S., including Khalid Sheikh Mohammed and Abu Zubaydah. The government disagrees, saying that even though these men may have exculpatory information, the national security interests at stake dictate that Moussaoui should not gain direct access to these potential witnesses.
The department's announcement that it would not oppose a defense request for dismissal cleared the way for the judge, Leonie M. Brinkema, to throw out the case against Mr. Moussaoui as early as Friday.

The judge, in district court in Alexandria, Va., had already signaled that she might have no other option because of the government's refusal to allow Mr. Moussaoui and his court-appointed lawyers to interview captured terrorists from Al Qaeda who might provide valuable defense testimony.

While dismissal of the case would be an obvious symbolic blow to the Justice Department and its larger prosecution strategy against terrorists, the department insisted today that the prosecution of Mr. Moussaoui was far from over and that the government was hopeful that an appeals court would allow the trial to proceed.

The Justice Department is seeking the death penalty in the case, the most prominent terrorist prosecution to result from the Sept. 11 attacks.

Officials of the Bush administration have also made clear that if Mr. Moussaoui cannot be prosecuted in a civilian court because of the question of defense witnesses, he will be moved to a military tribunal, where he may have fewer rights to seek testimony from the captured terrorists.

In a declaration filed on Wednesday and made public today by Judge Brinkema, the Justice Department did not ask directly that the charges be dismissed, but it said dismissal was "the surest route for ensuring that the questions at issue here can promptly be presented to the Fourth Circuit," a reference to the United States Court of Appeals for the Fourth Circuit, in Richmond, Va.
Analysis: That was the consensus of all the legal reporters at all the major newspapers, and I think it's probably right. The Justice Department is making a very safe bet here. First, the 4th Circuit has been relatively receptive to government arguments about national security in the Hamdi and Moussaoui cases, and there's no reason to think it will change course now. And even if the government loses on appeal, it has the recourse of designating Moussaoui as an enemy combatant and, if it desires, charging him with crimes in a military tribunal. Of course, that might look a little disingenuous, and someone would certainly petition a federal court for a writ of habeas corpus on Moussaoui's behalf. But I still think the administration would prevail, because of recent decisions in the Padilla and Hamdi cases which have upheld the government's right to do this (subject to a few exceptions such as access to counsel).

Does all this really matter, or is this a sideshow? Compared to the combat operations in Afghanistan or the anti-terrorism work done by the FBI and Treasury Department, this case is a sideshow. But it has important precedential value for the legal fight on terrorism, which may change course depending on the outcome of this case. If the federal government can successfully prosecute this case in federal court, they may do so in the future. That may paradoxically help defendants who might otherwise be hauled before a military tribunal or tossed in a brig as an enemy combatant. On the other hand, if the 4th Circuit delivers a smack-down to the Justice Department here, we may not see any future cases brought in federal court. More to follow.

Thursday, September 25, 2003
Rush Limbaugh gets liberal with the facts in anti-Clark column

The latest mud to get slung at retired Gen. Wesley Clark comes from Rush Limbaugh on the editorial page of the Wall Street Journal. Rush makes a facile comparison of Gen. Clark to Union Gen. George McClellan, another military figure who ran for President as a Democrat during wartime. In doing so, he cites to some instances from Clark's career which have been, according to Rush, less than stellar. Here's an excerpt:
Gen. McClellan graduated from West Point, second in his class. Also a trained engineer, he was decorated for his "zeal, gallantry, and ability" in constructing roads and bridges over routes for the marching army during the Mexican War. McClellan had much charisma. He was considered a great administrator who reorganized the Union army into a mighty fighting machine.

But, you say, McClellan was an indecisive general who feared using his forces. As NATO chief, Gen. Clark, on the other hand, urged his Pentagon bosses to let him introduce ground troops into the war against Serbia, and he even was willing to use military force to stop the Russians from occupying an airport at Pristina, Kosovo.

But Gen. Clark was badly wrong on both counts. If he had not been overruled by his superior, there would have been unnecessary casualties resulting from the deployment of ground troops. And if his subordinate, British Gen. Sir Michael Jackson, had not refused Gen. Clark's order to confront the Russian troops--who wound up cooperating with NATO peacekeeping efforts--the outcome could have been disastrous.
Now for the debunking. I'm not sure how well Rush Limbaugh knows these issues, but I'll give him the benefit of the doubt that he's not intentionally misstating the facts here -- he's just doing so out of ignorance. In the interests of education, I'd like to correct one major mistake in his column.

Let's analyze this excerpt from Rush's column: "As NATO chief, Gen. Clark, on the other hand, urged his Pentagon bosses to let him introduce ground troops into the war against Serbia. . . If he had not been overruled by his superior, there would have been unnecessary casualties resulting from the deployment of ground troops . . ."

I'm no Balkans expert; I didn't deploy to Kosovo or Bosnia like most Army MPs because I was in Korea, and then the experimental 4th Infantry Division. But I have read a lot on this subject, including Waging Modern War, War in a Time of Peace, The Mission, and A Problem From Hell. Gen. Clark did urge the Pentagon and White House to do two major things here: make ground troops a realistic option, and allow the use of Army aviation (Apache helicopters) to interdict Serbian ground units who were continuing their ethnic cleansing campaign.

(1) The ground troops option was necessary to make the threat of force credible to Slobodan Milosevic -- a man who Clark knew well from previous negotiations at Ramboillet and from the negotiation of the Dayton Accords. (See To End a War by Richard Holbrooke) President Clinton took this option off the table prematurely as a way to shore up domestic support and limit the scope of the conflict. Gen. Clark argued (quite correctly) that the credible threat of a ground invasion must be made to force Milosevic to capitulate. Recognizing the wisdom of this strategy, President Clinton made ground troops an option and set plans in motion that could have led to the land invasion of Kosovo. As it turned out, these plans subsequently formed the foundation for deployment plans for KFOR -- the force which eventually established peace and order in Kosovo. By leaning forward in his foxhole on this issue, Gen. Clark displayed a great degree of strategic, operational, and tactical acumen. Not only did the credible threat of ground invasion help Milosevic cave, but it also helped NATO forces quickly enter, occupy, and establish order in Kosovo.

(2) The Apache issue grew out of a basic problem: NATO high-altitude bombing could not successfully interdict Milosevic's ground forces, due to altitude, accuracy, and other issues. Interdicting Serbian units on the ground required slow, methodical, low bombing runs by aircraft with the capability to loiter on station for long periods of time: i.e. helicopters and A-10 aircraft. However, such aircraft are quite vulnerable to ground fire and surface-to-air-missiles, necessitating the use of artillery to suppress those air defenses. Clark wanted to stop the genocide, and he knew that Apaches could do the job. But to use Apaches without losing them, he also knew he had to shoot SEAD (suppression of enemy air defense). The Pentagon wouldn't let him do it. Pentagon lawyers told Clark that he could not do so because firing unobserved artillery fire would violate the Rules of Engagement. However, deploying forward observers (possibly Army Special Forces A-Teams) on the ground would have represented a serious escalation of the war and of the war's tactical risk. Clark was willing to take that risk because he felt, as I do, that we needed to stop the genocide on the ground with Apaches. Unfortunately, the White House was not willing to take that risk, advised by a Pentagon that was more concerned with force protection than mission accomplishment. The Army did eventually deploy Apaches to Albania, but they never flew one mission during the war.

Rush's column glosses over this entire issue, treating Clark as a trigger-happy general who wanted to start WWIII. I don't think the facts, as reported by journalists David Halberstam, Dana Priest, and Samantha Power, bear that out.

One other note: The long knives are coming out for Clark. At a town hall meeting in California, retired-Gen. Henry "Hugh" Shelton had some choice words for Clark in response to an audience question. Gen. Shelton is an old warrior who served his nation well, and wears both the scars and medals to prove it. He's also the man who effectively relieved Wes Clark as SACEUR, and with whom Clark clashed repeatedly during the Kosovo War. This is a clash of the titans, and it's hard for me to evaluate (from my position of relative ignorance) what's really going on here in this row between two four-star generals.
"What do you think of General Wesley Clark and would you support him as a presidential candidate," was the question put to him by moderator Dick Henning, assuming that all military men stood in support of each other. General Shelton took a drink of water and Henning said, "I noticed you took a drink on that one!"

"That question makes me wish it were vodka," said Shelton. "I've known Wes for a long time. I will tell you the reason he came out of Europe early had to do with integrity and character issues, things that are very near and dear to my heart. I'm not going to say whether I'm a Republican or a Democrat. I'll just say Wes won't get my vote."
In a sense, this was to be expected. Unlike the other politicians in the race, Clark hasn't lived under media scrutiny like this before. Clark's skeletons in the closet haven't been publicly aired like all the other candidates' skeletons. Moreover, Clark appears very threatening to various groups on both sides of the aisle -- he's likely to receive a lot more mud by the time this campaign ends. However, I wish that Gen. Shelton would have left things at "Wes won't get my vote" without making the vague allusion to Clark's integrity and character. Those comments seem out of character for a man like Shelton, whose reputation as a soldier's soldier is at least as great as Clark's reputation as a soldier-scholar.

Official details on the Yee and Halabi cases

After letting the media guess for nearly a week, the Pentagon finally released the official word on CPT Yee and Airman Halabi, the two servicemembers suspected of espionage at Guantanamo.
Senior Airman Ahmad I. Al Halabi, assigned to the 60th Logistical Readiness Squadron at Travis Air Force Base, Calif., is being held in pre-trial confinement at Vandenberg Air Force Base, Calif., following his Article 32 hearing last week. An Article 32 hearing is the military's equivalent of a preliminary hearing and grand jury process in the civilian justice system.

Air Force spokesman Lt. Col. Jean Schaefer said Al Halabi, who was apprehended July 23 at Jacksonville Naval Air Station, Fla., is charged with numerous Uniform Code of Military Justice violations. These include three charges of aiding the enemy, four charges of espionage, and nine charges of making false statements. Four other charges allege violations of the U.S. Code relating to espionage and to executing a fraudulent credit scheme.

The six-page charge sheet against Al Halabi, a native of Syria, accuses him of activities at Jacksonville Naval Air Station on the day of his arrest conducted "with intent or reason to believe it would be used to the injury of the United States or to the advantage of Syria." These include delivering three e-mail messages containing classified information about the detainees at Guantanamo Bay, and attempting to deliver two handwritten notes and more than 180 electronic versions of written notes from detainees to a third party to be carried to Syria.

The writings "directly concerned intelligence gathering and planning for the United States' war against terrorism," the charge sheet against Al Halabi notes.

He also is accused of e-mailing detainees' names, countries of origins, addresses, and corresponding internment serial numbers "to unauthorized person or persons whom he, the accused, knew to be the enemy" and of failing to report to military authorities that he had made contact with the Embassy of the Syrian Arab Republic.

Other charges against Al Halabi accuse him of wrongfully taking photographs of facilities in and around Camp Delta, of improperly handling classified information, of unauthorized communication with detainees and of failing to report other service members' unauthorized communications or attempted communications with detainees.

Schaefer said these activities occurred between December 2002 and July 2003, when Al Halabi was on temporary duty at Guantanamo Bay serving as a translator. He was apprehended at Jacksonville Naval Air Station when he returned to the states on personal leave. Al Halabi was transported to Travis Air Force Base the following day.
* * *
Meanwhile, a military magistrate ruled Sept. 15 that the military has sufficient reason to hold Army Capt. Yousef Yee while it continues its investigation into his case.

Duany said Yee was arrested at Jacksonville Naval Air Station on Sept. 10 and is being held at the Naval Consolidated Brig at Charleston, S.C.

No formal charges have been filed against Yee. Duany explained that the Uniformed Code of Military Justice gives the military up to 120 days to formally charge an accused service member and begin a trial.
This is a start. But it'd be nice to see redacted versions of the actual charging documents posted, so that legal experts could understand exactly what's going on down at Gitmo.

Wednesday, September 24, 2003
Another soldier under suspicion at Gitmo

The Los Angeles Times reports that the Pentagon has launched a major probe at Guantanamo Bay after the arrests of two servicemembers for espionage and other charges. Speaking with reporters today, Gen. Peter Pace (Vice Chair of the Joint Chiefs of Staff) said that one or two specific individuals were under surveillance in connection with this investigation.
"We don't presume that the two we know about is all there is to it," Gen. Peter Pace, vice chairman of the Joint Chiefs of Staff, told reporters Wednesday.

Indeed, military officials said investigators are scrutinizing at least two other individuals, including an outside contractor, in their widening security probe. The officials declined to elaborate, and stressed that there had been no new arrests.

"I do get the sense from our law enforcement guys that other arrests are imminent," said a U.S. Navy official.
While the LA Times didn't bury the lead of this story, it did bury some extremely interesting comments at the end of its story, which will run on Thursday:
Sources who have worked at Guantanamo Bay said it would not have been difficult for a translator such as Al-Halabi to be in unsupervised contact with prisoners and smuggle out classified and sensitive information.

Though there are inspection points and routine checks, the base operates on trust to a significant degree because those working there have security clearances.

"When I was there they didn't check your pockets and there was no metal detector," said William Tierney, a former Army intelligence officer who served as a civilian translator at Guantanamo in 2002 before being forced to leave after being accused of interfering with interrogations.

A former Guantanamo interrogator said that translators also have access to classified computer networks, and that documents such as flight schedules and cell configurations are widely available.

"Any one of us could walk out of there with security documents," the former interrogator said.
Analysis: There really isn't any excuse for sloppy security. It always traces to complacency on the part of security personnel, intelligence personnel, and individuals who ought to know better. If the mission at Gitmo was this important, then we should have put more command emphasis on making sure security was tight there. Maybe that means doing command inspections; maybe it means rotating troops frequently; maybe it means denying access to all but a few key personnel. But if it's true that security was lax at Gitmo, and that CPT Yee and Airman Halabi were simply doing what everyone else did there, that's going to be a pretty embarassing issue for the government to deal with at trial.

On the larger story, I'm not surprised that we have more people under suspicion. Given the circumstances, it's likely that quite a few soldiers befriended detainees, simply as a human reaction to living on opposite sides of the fence for so long. But it will shock me (as CPT Yee and Airman Halabi's arrests did) if we actually find more people who allegedly committed acts of espionage. Such a discovery will shake my faith in the fidelity of my fellow serviceperson, and give me pause to doubt the fidelity of those with whom I might serve alongside in the future. In the military, you rely on your brother (or sister) in the fighting position next to you to do his or her job in combat. Mission accomplishment in the military derives from unit effectiveness; unit effectiveness is built on unit cohesion; unit cohesion is built on trust and shared sacrifice. These traitorous acts, if true, undermine that trust, and as a result, undermine the entire American military.

Coda to the Max Cleland column

This note earned me a lot of feedback, for which I'm grateful. In response to comments from some extremely articulate readers, I'd like to clarify a couple of points.

(1) Max Cleland was wounded in combat, but not by enemy fire. One of his grenades exploded after falling from his Load Bearing Equipment to the ground as he exited a helicopter. Here's how Sen. Cleland recalls the incident:
I left my hometown of Lithonia, Georgia, a strong young man heading to a foreign land to fight for my country. Vietnam — another world, unlike anything I had ever seen before. I remember standing on the edge of the bomb crater that had been my home for five days and five nights, stretching my six-foot, two-inch frame, and becoming caught up in excitement. The battle for Khe Sanh was over, and I had come out of it unhurt and alive! Five terrible days and nights were behind us. In spite of dire predictions, we had held Khe Sanh. I had scored a personal victory over myself and my fears. I had become a soldier and could really look the old sarge in the face. As Stephen Crane put it in his great book on war, The Red Badge of Courage, “I went to face the Great Death and found it was only the Great Death.” My tour of duty in Vietnam was almost over. In another month I’d be going home. I smiled, thinking of the good times waiting stateside.

On April 8, 1968, I volunteered for one last mission. The helicopter moved in low. The troops jumped out with M16 rifles in hand as we crouched low to the ground to avoid the helicopter blades. Then I saw the grenade. It was where the chopper had lifted off. It must be mine, I thought. Grenades had fallen off my web gear before. Shifting the M16 to my left hand and holding it behind me, I bent down to pick up the grenade.

A blinding explosion threw me backwards.
(Credit to Ted Barlow's weblog for this quote) Some have written me to say that Sen. Cleland should not get to take credit for his war wounds, since they happened by accident. With all due respect, that's a load of manure. The essential nature of war is that it is chaos -- the very antithesis of order. Soldiers are wounded in combat all the time by friendly fire, by mistakes, and by sheer bad luck. Cleland may not have taken an enemy bullet the way Wes Clark did. But I don't think that diminishes his wounds, or his valor, in the slightest. Regardless of how he earned his Purple Heart, Max Cleland knows the human cost of war. That personal understanding of war gives him credibility on the issue. I've never been in combat, and I'm glad for that fact, but I have volumes of respect for those who have been there.

(2) A lot's been made of the Iraq v. Vietnam comparison, with partisans on both sides of the issue making good arguments for why their case is right. I tend to think that Iraq is not another Vietnam, but that Iraq is a pretty bad situation nonetheless. One extremely smart reader writes to explain why the two conflicts are different, and I generally agree with his logic:
"The Vietnam analogy is so strikingly inappropriate to Iraq that one hardly knows where to begin. At this point, our enemies in Iraq are 1) unpopular with the locals, 2) unable to deploy any heavy weapons, 3) having to pay malcontents a bounty for killing Americans, 4) without reliable sanctuary in neigboring countries (although they are able to infiltrate effectively), and 5) without large-scale support from a superpower. None of these was true in Vietnam. The problems we are having in Iraq are also problems we didn't have in Vietnam: 1) Responsibility for building up a modern infrastructure in the face of sabotage, 2) establishing civic consciousness in a society that has been terrorized out of it, 3) dealing with sectarian and interethnic conflict among our allies, 4) primarily urban combat engagements which make shooting back tricky, 5) providing police services. The only similarities to Vietnam are superficial ones: We don't have enough native speakers, there's a cultural gap, the weather conditions are very unpleasant, etc."

That said, we still face an extremely difficult situation in Iraq. Our soldiers are fighting a difficult counter-insurgency campaign against trained ex-Iraqi soldiers, foreign paramilitaries, and other partisans. They have to cope with a staggering amount of munitions that melted back into Iraqi society after the war -- talk about a gun control problem! The Iraqi people do not wholly support us, nor do they wholly oppose us -- the issue remains in doubt. Furthermore, as my reader comments, we do have to manage all the nation-building stuff at the same time that we're fighting this counter-insurgency campaign.

So in a sense, the Iraq campaign is more difficult than Vietnam was, in the sense that it's more complex. Instead of merely facing a guerilla war, or merely facing a bipolar struggle between North and South, we face an incredibly complex situation in Iraq where several sides are vying for control of the country -- or their piece of it. We have international considerations that simply weren't present in Vietnam, and we have to cope with instantaneous global reporting of these issues while we deal with them. On top of all that, we have to rebuild Iraq. I don't think that Iraq is an impossible mission, and indeed, I think we must succeed there. But succeeding in Iraq will require pragmatic policies grounded in reality, not hope.

Too cheap to pay the whole fare?
Leave plan for soldiers in Iraq only covers the way to BWI

The 4th Infantry Division is starting a midtour leave program for its soldiers in Iraq, according to the San Antonio Express-News. The program is designed to boost soldier morale for men and women deployed to Iraq for a year, and is roughly analogous to the midtour leave given to soldiers in Korea during the 1-year hardship tour there. In theory, it's a good idea. In reality, this plan is something that only a Pentagon bureaucrat could come up with.
The division's commander, Maj. Gen. Raymond T. Odierno, told families and soldiers Tuesday that the "midtour" leave program for troops in the U.S. Central Command had been approved by Defense Secretary Donald Rumsfeld.

Two well-placed Defense Department officials later confirmed that statement, with one saying those leaves would begin in days.

Soldiers with the 4th Infantry Division, in Iraq since late March, will take leaves through January, Odierno said in an e-mail message obtained by the San Antonio Express-News. But he warned that only 21,000 of the 27,000 task force soldiers would be eligible.
* * *
Soldiers will be able to use up to 15 days of their annual monthlong leave for trips to the United States. They'll fly from Iraq or Kuwait to Frankfurt, Germany, with U.S.-based troops then flying to Baltimore-Washington International Airport at government expense. The troops will have to pay their ways home or meet relatives in the Baltimore-Washington area.

During Vietnam, troops flew at government expense to Hawaii but had to pay their own ways home.

One of them, Lawrence Korb, an assistant defense secretary in the Reagan administration, was critical of the Pentagon's decision to require soldiers to pay their own way home, saying he doubted that officials had "thought this thing through."

He also said he saw the move as a way of appeasing angry families, who might urge soldiers to leave the all-volunteer force once their duty tours end.
Analysis: In all fairness, the soldiers probably can afford to pay the rest of the way, considering that they've all been tax-free for the length of their deployment, and they've all earned supplemental pay for being in a combat zone. Of course, most soldiers have families these days, so it's not like that money goes into a bank account somewhere. But this plan still strikes me as boneheaded.

At the very least, the Pentagon could spring the extra $300 for a roundtrip flight from Baltimore. (Or less if these soldiers flew Southwest) Or, more logically, the Pentagon could fly these soldiers back to their home stations where their famiiles are -- Fort Hood, TX, Fort Carson, CO, or elsewhere. That would make sense, considering that's where these soldiers deployed from and that's where many of their families remain. But flying them to BWI makes almost no sense at all, unless you're trying to stimulate the Baltimore tourist economy after Hurricane Isabel.

Update: The Pentagon formally announced its leave policy yesterday afternoon, possibly in reaction to this story. The good news is that soldiers will not be stranded at BWI -- they'll be flown to one of a few major airports scattered around the country.
David S.C. Chu, undersecretary of defense for personnel and readiness, approved a U.S. Central Command request for the program Sept. 23. Participants have the choice of traveling free from Iraq to gateway airports in Atlanta, Baltimore, Dallas, Los Angeles or Frankfurt, Germany, and return, according to Chu's approval memo. Travel beyond those points would be at the members' expense.
This is a little bit more fair. But I still think it'd make more sense to return them to their station of origin, if that's what the soldier wants. A couple of readers suggested that these soldiers might take advantage of military "space available" flights. Unfortunately, that's not really an option these days. With the exception of regular hops like Seattle-Korea, there really aren't a lot of space-A flights these days.

Military tribunals to begin in early 2004

The New York Daily News reports, on the basis of confidential unnamed sources, that the Pentagon plans to try men at Guantanamo Bay in military tribunals at the beginning of 2004. Many of the 600+ detainees there have been held since late 2001, when they were captured in Afghanistan, and are reputed to represent a mix of Taliban and Al Qaeda guerillas.
Four detainees have been picked to face the first round of terror trials before a military tribunal, the sources said.

Their identities were not revealed, but sources told the Daily News that they are lower-ranking members of Al Qaeda or the Taliban familiar with plans for terror attacks against the U.S. or its interests.

They likely will be charged with conspiracy to commit acts of terror, with prosecutors looking to secure plea bargains and use their testimony against higher-ranking operatives.

"It gives prosecutors ammo against others because they have their potential testimony," one source said.

Charges against the suspects are expected to be announced next month, with the tribunal expected to meet in November. The trials could begin as early as January, sources said.
As a prosecutorial strategy, this makes sense. You want to prosecute the little fish in order to a) get testimony on the record, b) test your cases, c) learn what evidentiary problems exist, and d) apply leverage against the big fish. If you can get these little fish to plead guilty in exchange for testimony, so much the better. Of course, it's hard to see how anything short of the death penalty will give prosecutors leverage in these cases, since the detainees are already being held indefinitely. It's hard for me to see a way we could make this incarceration worse, while still staying within the bounds of the Third Geneva Convention. (Note: the Pentagon says these detainees are not officials POWs under the GC. Technically, that's not true until we hold Art. V tribunals to determine their status, a formal step which has not been taken. Therefore, the default rule under international law is that they are POWs, and that they deserve Geneva Convention rights. The U.S. has observed this rule in practice, but not as a matter of policy.)

Politically, the decision to launch these tribunals is another matter. I'm not sure the President has the same political capital as when he signed his 13 Nov 01 Executive Order authorizing these tribunals, and I'm not sure this is the wisest move during an election year. The White House is essentially handing the Democratic party a major campaign issue on a silver platter -- "Look, we're willing to bend the Constitution and the Geneva Convention." Though they're probably horrified too, I'm sure that civil libertarians on both sides of the aisle are salivating over the prospect of debating this issue.

Tuesday, September 23, 2003
Fmr. Sen. Cleland to the White House:
"Welcome to Vietnam, Mr. President. Sorry you didn't go when you had the chance."

TAPPED drew my attention today to a column by former-Senator Max Cleland which ran in the Atlanta Journal-Constitution about Iraq. At first glance, some might call this a facile comparison of Iraq to Vietnam. They would be wrong. A deeper look first reveals that Cleland has the credibility to say everything in this piece. He is a decorated Vietnam veteran who was grievously wounded in combat, and who rose to serve as administrator of the Veterans Administration. Cleland knows what war is all about, and he knows the human cost of war all too well. He also knows the strategic side of war, from his service in the U.S. Senate and current service on the independent 9/11 Commission. Suffice to say, Cleland has the c.v. to back up what he writes. And this essay doesn't read like your typical critique of the White House. Cleland takes on the White House, point by point, and explains why our policy in Iraq has run aground:
Unfortunately, the people who drove the engine to get into the war in Iraq never served in Vietnam. Not the president. Not the vice president. Not the secretary of defense. Not the deputy secretary of defense. Too bad. They could have learned some lessons:

• Don't underestimate the enemy. The enemy always has one option you cannot control. He always has the option to die. This is especially true if you are dealing with true believers and guerillas fighting for their version of reality, whether political or religious. They are what Tom Friedman of The New York Times calls the "non-deterrables." If those non-deterrables are already in their country, they will be able to wait you out until you go home.

• If the enemy adopts a "hit-and-run" strategy designed to inflict maximum casualties on you, you may win every battle, but (as Walter Lippman once said about Vietnam) you can't win the war.

• If you adopt a strategy of not just pre-emptive strike but also pre-emptive war, you own the aftermath. You better plan for it. You better have an exit strategy because you cannot stay there indefinitely unless you make it the 51st state.

If you do stay an extended period of time, you then become an occupier, not a liberator. That feeds the enemy against you.

• If you adopt the strategy of pre-emptive war, your intelligence must be not just "darn good," as the president has said; it must be "bulletproof," as Defense Secretary Donald Rumsfeld claimed the administration's was against Saddam Hussein. Anything short of that saps credibility.

• If you want to know what is really going on in the war, ask the troops on the ground, not the policy-makers in Washington.

• In a democracy, instead of truth being the first casualty in war, it should be the first cause of war. It is the only way the Congress and the American people can cope with getting through it. As credibility is strained, support for the war and support for the troops go downhill. Continued loss of credibility drains troop morale, the media become more suspicious, the public becomes more incredulous and Congress is reduced to hearings and investigations.

Instead of learning the lessons of Vietnam, where all of the above happened, the president, the vice president, the secretary of defense and the deputy secretary of defense have gotten this country into a disaster in the desert.
Strong words from a strong-minded American who's been there, done that, and gotten the scars to prove it. I don't think that military service should be a prerequisite to political leadership. (For the record, the President served in the Texas Air National Guard and the SecDef served as a naval aviator on active duty and in the reserves.) But I do see a paucity of such experience in the White House and its command team -- as well as a lack of appreciation for the kinds of lessons that such experience brings. Sure, you can read about war and learn its impact from textbooks at the Kennedy School or Hoover Institute. But as one military historian wrote, the study of war by the uninitiated through books is like the study of sex by virgins with only pornography as their guide.

Much has been made in recent months about national service, and the extent to which our elites avoid national service -- particularly uniformed service. While I do not support conscription, I do think we need to do better as a society at voluntarily spreading the burden of military service. Our working class and middle class already do their part. The elite class does not. While doing some reading the other day, I came across this letter written by a general to a congressman during WWII about a conscript having adjustment problems. (Thanks to Andrew Olmsted) I think it expresses my point quite well.
27th Infantry Division
Office of the Commanding General
Fort Ord, California

27 February 1942

The Honorable Clinton P. Anderson, M.C.
House of Representatives

Dear Mr. Anderson:

. . . If doctors in the future are to have the privilege of practicing their profession, if archeologists are to investigate antiquity, if students are to have the privilege of taking degrees, and professors the privilege of teaching in their own way, somebody must march and fight and bleed and die and I know no reason why students, doctors, professors, and archeologists shouldn't do their share of it.

You say, "It strikes me as too bad to take that type of education and bury it in a rifle squad," as though there were something low or mean or servile being a member of a rifle squad and only morons and ditch diggers should be given such duty. I know of no place red blooded men of intelligence and initiative are more needed than in the rifle or weapons squad.

In this capacity, full recognition is given to the placing of men so that they may do the work most beneficial to the unit of which they are a part. Whenever men are needed for a particular duty, the record of all men having the required skills and qualifications are considered. I have examined the records of Private Lister and it is fairly complete. I know he holds the 100- yard dash and broad jump records in the Border Conference; that he was president of his fraternity; that his mother was born in Alabama and his father in Michigan; that his father lives at the Burlington Hotel in Washington and I suspect asked you to do what you could to get his son on other duty.

It is desirable that all men, regardless of their specialty, shall learn by doing; how hard it is to march with a pack for 20 miles; how to hold their own in bayonet combat; and how to respect the man who really takes it, namely the private in the rifle squad. . . .

Sincerely yours,

Brig Gen, USA
Sen. Cleland certainly understands what it means to be a private in a rifle squad. So do Wes Clark, Colin Powell, Richard Armitage, and Anthony Principi. American foreign policy might look a little wiser if we had more men like these in high office.

Second military servicemember detained for Gitmo security violations

The AP reports (via the NY Times) that military officials have taken an Air Force serviceperson into custody for allegedly misusing classified information in connection with Guantanamo Bay. Details are very sketchy at this point, as they are in CPT Yee's case.
The man is being held in California on security-related matters, one Pentagon official said. Neither of two officials who spoke about the matter on condition of anonymity would say whether the Air Force investigation was linked to the arrest earlier this month of the Muslim military chaplain at the prison camp in Guantanamo Bay, Cuba.

The military has classified many details about the prison camp and the detainees and has not identified any of the men being held there. Military officials have said the fight against terrorism could be hampered if terrorist groups got such information.
More to follow . . .

Update I: The AP adds some more details to its story (via the New York Times) about this second individual, who was actually arrested before CPT Yee. It's unclear whether the two men were working together, although it seems awfully coincidental if they weren't.
Senior Airman Ahmad I. al-Halabi is being held at Vandenberg Air Force Base in California, facing 32 criminal charges, spokesman Maj. Michael Shavers said.

Al-Halabi worked as an Arabic language translator at the prison camp for al-Qaida and Taliban suspects at Guantanamo Bay, Cuba, Shavers said. The Air Force enlisted man knew the Muslim chaplain at the prison arrested earlier this month, but it's unclear if the two arrests are linked, Shavers said.

The translator was arrested more than six weeks before the chaplain, Shavers said.

Al-Halabi is charged with nine counts related to espionage, three counts of aiding the enemy, 11 counts of disobeying a lawful order, and nine counts of making a false official statement.
Notes on the charges: Once again, espionage and aiding the enemy are capital offenses under the Uniform Code of Military Justice. The penalties for disobeying a lawful order and making a false official statement are comparitively light, but these sentences are cumulative in nature. I can only make a SWAG as to how these charges were chosen. The espionage and aiding the enemy counts go towards the overall plan. Each of the disobeying-an-order counts probably relates to a specific instance where the defendant did something wrong with a classified document. And if the defendant was required to sign some sort of log or register saying he had logged in documents, every signature would constitute a false official statement. A fact pattern like that could easily add up to the charges listed.

CPT Yee's last interview

This morning's Miami Herald carries excerpts from a 30 Jul 03 interview with CPT Youssef Yee conducted at the Guantanamo Bay base where more than 600 detainees are currently being held by the American military. These statements don't seem as defensive as those made in CPT Yee's article in "The Wire", but they are nonetheless odd for an American military officer.
''As the chaplain, what I do is focus on what the person is doing here and now in the present, rather than what a person was fighting for in order to get here,'' Capt. Youseff Yee said in a July 30 interview at the base where the Army is holding about 660 terrorism suspects from 42 countries. "What I try to do is improve a person's situation or help them with their quality of life -- what can I do to help them deal with the situation that they're dealing with?''
* * *
In his interview with The Herald at the hut that served as a mosque for the handful of Muslim soldiers at the base, Yee declined to answer questions about his feelings toward the accused members of the Taliban and al Qaeda.

''It's not my job here to brand someone as guilty or innocent,'' he said. "I look at my role as to try to help that person in any way I can deal with the difficulties thy are experiencing. This is the purpose of the chaplain.''

Yee said he had spoken to every detainee over the course of the past year, but declined to address what he termed the ''justice aspect'' or reveal what detainees told him about their indefinite detention without charges.
* * *
''I'm there as a chaplain to listen with a sympathetic ear to any concerns they may have,'' Yee said. "In terms of indefiniteness, not looking at a specific complaint in general, I would encourage any detainee to be as patient as possible with his situation. Patience is a general encouragement of the Koran.''

In ministering to the needs of the detainees, Yee said his duties included meeting with any enemy combatant who requested time to talk with him in order to pass on a complaint or a need. Guards would enter the chaplain's request in a computer system that would generate a daily printout for him. He said typical requests included talking about issues, getting religious books or a different translation of the Koran, or getting prayer beads, prayer oils or a prayer cap from a stock he kept to distribute.

One of the improvements to detainee life he said he initiated was getting prepackaged meals to be given to detainees who wanted to fast so they could eat before sunrise and after sundown.
Legal note: As a matter of law, nearly all this evidence may be excluded from the trial as irrelevant, or as inadmissable character evidence. (See Rules 403 and 404 respectively in the Military Rules of Evidence, found in part III of the Manual for Courts Martial.) All this character evidence may not be relevant at all to the issues before the military jury in CPT Yee's case. And even if it is relevant, the risk of prejudice or confusion may be too great, thus warranting its exclusion. Unless CPT Yee puts his character at issue, it will be a tough fight to get this stuff in evidence. The military prosecutors will need to show, just as they would in federal court, that this evidence is somehow relevant to CPT Yee's intent or state of mind, and that its probative value outweighs its prejudice. That will be a very tough case to make.

Ex-spinster joins CNN to provide spin analysis

Victoria Clarke, widely regarded as one of the better Pentagon press secretaries in recent years, has accepted a position with CNN that may put her across the airwaves from her former colleagues. (See NYT report here) In addition to managing the press after Sept. 11, Clarke is credited with helping to craft and stage-manage the public persona of Don Rumsfeld, as well as developing the "embedding" program for journalists in the second Gulf War.

Analysis of CPT Yee and the potential for a treason charge

Matt at Stop the Bleating has done substantial research into the history of America's treason law (uniquely codified in our Constitution), and has some thoughts today on how that law might apply to CPT Yee's case. As of yet, treason has not been listed in any story as a charge that CPT Yee may face. Nonetheless, I think the issues Matt identifies may be applicable to the other charges (e.g. espionage, aiding the enemy) that CPT Yee has been held over on.

Monday, September 22, 2003
About face!
Hackworth gives green light to Wes Clark's campaign

Col. David Hackworth once called Gen. Wesley Clark a "perfumed prince", a derogatory term for a senior officer more concerned with appearances and politics than with muddy boots soldiering. In a column today, Col. Hackworth reverses course abruptly, giving Clark a pretty strong endorsement as the kind of general you'd want to have as Commander-in-Chief.
No doubt he’s made his share of enemies. He doesn’t suffer fools easily and wouldn’t have allowed the dilettantes who convinced Dubya to do Iraq to even cut the White House lawn. So he should prepare for a fair amount of dart-throwing from detractors he’s ripped into during the past three decades.

Hey, I am one of those: I took a swing at Clark during the Kosovo campaign when I thought he screwed up the operation, and I called him a “Perfumed Prince.” Only years later did I discover from his book and other research that I was wrong – the blame should have been worn by British timidity and William Cohen, U.S. SecDef at the time.

At the interview, Clark came along without the standard platoon of handlers and treated the little folks who poured the coffee and served the bacon and eggs with exactly the same respect and consideration he gave the biggies in the dining room like my colleague Larry King and Bob Tisch, the Regency Hotel’s owner. An appealing common touch.

But if he wins the election, don’t expect an Andrew Jackson field-soldier type. Clark’s an intellectual, and his military career is more like Ike’s – that of a staff guy and a brilliant high-level commander. Can he make tough decisions? Bet on it. Just like Ike did during his eight hard but prosperous years as president.
Analysis: Hack's an "opinion leader" in the military community, to use a phrase I learned in college. His weekly column gets circulated widely by e-mail, and often gets picked up by major newspapers. Hack is a bona fide war hero from Korea and Vietnam -- and his three books have earned him a great deal of prestige among soldiers and veterans. A lot of folks may see this as a signal to embrace Clark as the best pro-military candidate for 2004 -- to include the incumbent. This endorsement is very, very important for a man who hopes to sell himself as a veteran to the American public.

On the other than, this endorsement may provoke even more hostility towards Clark among military establishment types. Clark already has the reputation as an iconclastic intellectual who left others in his dust on the way to the top. Hack provokes a pretty violent reaction from many in the defense community, and his endorsement of Clark may make Clark seem like a more threatening candidate; someone who might really shake things up in the Pentagon. If that's the case, we can expect to see a barrage of character attacks on Gen. Clark in the near future. More to follow.

Panel releases report on US Air Force Academy scandal

The New York Times reports that an independent panel has issued its report on the sexual assault scandal which has rocked the U.S. Air Force Academy at Colorado Springs. The verdict isn't good for the youngest service academy, which comes as no surprise to those who have watched this case. (The full text of the report is available here from the Pentagon.) The most serious allegations concern the leadership of the Air Force Academy and the Air Force, who may have disregarded reports of sexual abuse at the academy for quite some time.
The commission also said that in an attempt "to shield Air Force Headquarters from public criticism," the Air Force's general counsel had largely ignored this history of official neglect when he reported on rape at the academy earlier this year.

The blistering report released here by the commission, led by former Representative Tillie Fowler, the Florida Republican, said sexual assault had been a problem at the Air Force Academy throughout the last decade, and possibly since women were first admitted in 1976.

The findings came as something of a surprise to victims' advocates, many of whom had initially criticized the panel's makeup as biased against women in the military, prompting the resignation of one member and the former director even before the panel began its work. Its members were appointed by Defense Secretary Donald H. Rumsfeld.

Citing repeated warnings from the Air Force surgeon general and the Air Force Office of Special Investigations, as well as the Senate Armed Services Committee, the commission concluded that, "Since at least 1993, the highest levels of Air Force leadership have known of serious sexual misconduct problems at the academy," but failed to take effective action. Instead, it made fitful and limited attempts to investigate the issue, but quickly dropped them, the commission's report said.
Quick prediction: This report will torpedo the pending nomination of James Roche to be the Secretary of the Army. He was tapped to take over the Army after Secretary Rumsfeld fired former-Army Sec. Tom White. But now, it looks like his nomination will get wrapped around the axle of this issue. Why? For starters, a fair number of Congressmen have a bone to pick with the Pentagon on other issues, and this nomination will provide a convenient battleground. But more importantly, the buck has to stop somewhere for this Air Force Academy scandal, and the Secretary of the Air Force seems like the appropriate civilian official to hold accountable.

Wes Clark meets the press
Can this soldier crawl through the mud that's about to be thrown his way?

After declaring his candidacy last week for President, retired Gen. Wesley K. Clark has begun the long, hard, punishing campaign which may ultimately take him to the White House. Scores of profiles have surfaced of Wes Clark in the last few days, including stories in the NY Times, Washington Post (including this one and this one), LA Times, Newsweek, Slate, and the Atlantic Monthly. Most of these stories say essentially the same thing: Wes Clark was a brilliant "water walker" who shot to the top of the military (with some resentment from peers and superiors), and who ably led the war in Kosovo despite disagreements with just about everyone involved at the senior levels of NATO and the U.S. government. Consider this excerpt from Vernon Loeb's story in The Post.
Supporters and detractors agree on this much: The retired general is immensely talented, possessed of a keen strategic sensibility and the kind of gold-plated military credentials that could make him a formidable candidate in the Democratic race for president.

Clark's intense, emotional personality and his aggressive -- some say abrasive -- command style are likely to be the focus of intense scrutiny as he takes on the biggest challenge of a peripatetic career almost defined by the pursuit of challenge -- a run for the presidency in which his national security credentials will figure large in his potential appeal.
* * *
But Clark's hard-charging style, his penchant for dealing directly with the White House and his ceaseless agitation for ground forces during the Kosovo conflict -- over the wishes of Defense Secretary William S. Cohen -- caught up with him a month after the end of the war. In July 2000, while dining with the president of Lithuania in London, Clark was called by Gen. Henry H. Shelton, chairman of the Joint Chiefs of Staff, who curtly informed him that Cohen had decided to ease him out of his NATO command. The call stunned Clark. It meant he would have to leave his NATO post three months earlier than scheduled and without a year's extension, which he had expected.

Clark had clashes outside the administration as well. In the war's immediate aftermath, when a contingent of Russian troops moved quickly into Kosovo and occupied the airfield at Pristina, the provincial capital, a British officer, Lt. Gen. Michael Jackson, refused a direct order from Clark to block the runway so the Russians could not fly in reinforcements.

Clark, who believed additional Russian troops could have led to a confrontation with NATO and possibly jeopardized the nascent allied peacekeeping mission, insisted. But Jackson stood firm, believing the Russians were isolated at the airfield and did not represent a threat. "Sir, I'm not starting World War III for you," Jackson replied.
* * *
Clark's many supporters inside and outside the military dispute the contention voiced by critics that his ambition and drive to come out on top made him untrustworthy in the eyes of his peers.

"I have watched him at close range for 35 years, in which I have looked at the allegation, and I found it totally unsupported," said retired Gen. Barry R. McCaffrey, who taught with Clark at West Point in the 1970s. "That's not to say he isn't ambitious and quick. He is probably among the top five most talented I've met in my life. I think he is a national treasure who has a lot to offer the country."

McCaffrey acknowledges that Clark was not the most popular four-star general in the Army leadership. "This is no insult to Army culture, a culture I love and admire," McCaffrey said, "but he was way too bright, way too articulate, way too good looking and perceived to be way too wired to fit in with our culture. He was not one of the good ol' boys."
Pundits on the left and right, such as Paul Glastris and William Safire, have also jumped into the fray. The pundits see this candidacy in strategic terms, opining on what this move means for the Democratic party and larger body politic. The consensus seems to be that this will only help the Democratic party, especially if it sparks some serious debate over national security issues in that party's primary.

My prediction: Before Wes Clark reaches the White House, he'll have to low crawl through about 3,000 miles of mud. The military establishment will leak every negative detail of Clark's military performance to the press that's there to leak -- and some that aren't. These will include: his tendency towards personal tirades, his micromanagement of subordinates and abusive behavior towards subordinates, his precise job performance at key positions where he was under scrutiny, and anything else that can be spun by Clark's opponents. At some point, Clark will have to deal with that Ratko Mladic incident from the mid-1990s. (For the record, Clark met with him before his indictment for war crimes, just as he met with Slobodan Milosevic before his indictment. In both cases, these meetings produced tangible results for American foreign policy.) Democrats will fire HEAT rounds at Gen. Clark for his moderate views that may not sell well to key Democrat constituencies. Clark will respond with his wonkish side, and he will quickly formulate policies on all the important issues, but it may be too late by that point. And the press will soon stop swooning over Clark like a first date.

At that point, which I will call the "decisive point" of the campaign, Clark will have to retain the ability to raise money and raise issues. If he can, he has a chance; if he doesn't, he's toast. It's still too early to tell whether Clark will make it through this mud run, and I'll reserve judgment for now. But this will be the toughest fight of Clark's long and impressive career.

More facts emerge about CPT Yee's case

Rowan Scarborough reports in this morning's Washington Times about the specific documents held by CPT Yee at the time of his arrest, and why the government was so concerned. At first glance, this looks like more than a technical violation of classified-documents rules.
A law-enforcement source said yesterday those papers included a list of detainees and the names of U.S. prison personnel at Guantanamo.

If al Qaeda, Osama bin Laden's terror network, were to learn the detainees' identities, it would provide valuable information on the whereabouts of operators who are missing. This information could then allow al Qaeda to change operating methods for fear the detainee provided such information to his American captors, the law- enforcement official said.

The Pentagon has refused news media requests to release the names of the 660 detainees for that very reason.

A list of American personnel at the base in the hands of terrorists could put them and their families in danger, the source told The Times. The source said there was a debate within the administration on whether to arrest Capt. Yee or keep him under surveillance.

The source declined to say which agency advocated the Sept. 10 arrest, but said the order came from "the highest levels."

"If the list of detainees got out, then you have a whole lot of al Qaeda cells go to ground," a senior Bush administration official said yesterday. This source said the Pentagon pushed to make the arrest and said the White House was involved in the decision.

The official said one document in Capt. Yee's possession was a drawing showing where certain prisoners and American personnel were located.
Analysis: There's another issue lurking in this story that I haven't seen any of the intelligence sources say in any of the major newspaper stories on CPT Yee. If this man sympathized with the enemy, and he counseled these detainees while they were going through the interrogation process, it's very likely that he hindered the interrogations in a substantial way. Interrogations depend on control, and a sense of total isolation on the part of the detainee. Any outside contact, particularly from someone with authority (as a military officer) and moral authority (as a Muslim cleric) would threaten the methods used by most military interrogators.

Consider this excerpt from the Declaration of U.S. Navy Commander Donald D. Woolfolk, given in the case of Yaser Hamdi to substantiate the government's case for holding him as an enemy combatant.
(FOUO) . . . When done effectively, interrogation provides information that likely could not be gleaned from any other source. Loss of this tool, in any respect, would undermine our nation’s intelligence gathering efforts, thus crippling the national security of the United States. The United States does not employ any corporal means of coercion to gain information from persons being interrogated. Rather, the United States has adopted a humane approach to interrogation that relies upon creating an atmosphere of dependency and trust between detainees and the intelligence gathering staff assigned to that detainee. Over time, information is learned. The United States is now engaged in a robust program of interrogating individuals who have been identified as enemy combatants in the global War on Terrorism. This is because it is recognized that they unquestionably hold critical information that is crucial to our national security. A prime example of the effectiveness of this method of interrogation through dependency and trust can be found in the announcement this week of the U.S. Government’s disruption and detention of a U.S. citizen working in coordination with al Qaida to detonate a “dirty bomb” in the United States. Knowledge and disruption of this plot may not have occurred absent effective intelligence gathered through interrogation. [emphasis added]

(FOUO) Interrogation leading to the development of meaningful and useable intelligence is not static. The collection of intelligence is active and ongoing. As new intelligence information is derived from any source, the opportunity to learn additional information through interrogation is presented. We are now living in an age where our nation is engaged in international armed conflict, we face a foe that knows no borders and perceives all Americans, wherever they may be, as targets of opportunity. Under such circumstances the need to maintain the tightly controlled environment, which has been established to create dependency and trust by the detainee with his interrogator, is of paramount importance. Disruption of the interrogation environment, such as through access to a detainee by counsel, undermines this interrogation dynamic. Should this occur, a critical resource may be lost, resulting in a direct threat to national security. [emphasis added]
This statement was made to justify the seclusion of a detainee at the same brig that now holds CPT Yee, and to specifically prevent Hamdi from having access to legal counsel. The reasoning is the same. Allowing access to legal counsel would disturb the isolation and dependency necessary for successful interrogation -- interrogation which can yield details of plans to kill Americans. (Let's not forget what's at stake here) A sympathetic chaplain can also frustrate such interrogation efforts, and impede the collection of human intelligence from the detainees. That's not a good thing. We have allowed the detainees access to a Muslim chaplain out of humanity, and compliance with the Third Geneva Convention. But we cannot allow our chaplain -- an American military officer -- to impede the collection of intelligence because of his uncertain loyalties.

CPT Yee was in a critical position; he had unsupervised, unblocked, personal access to the detainees at a time when their isolation and dependency was critical. Knowingly or unknowingly, he may have given these detainees the will to fight our interrogators, to hold onto information a little longer that might be used to save American lives. If the facts are as alleged, then CPT Yee had about as large of an effect on the war on terrorism as can be imagined. While not as spectacular or bloody as the betrayal allegedly committed by SGT Hasan Akbar against his officers in the 101st, this betrayal is probably more deadly for all of us.

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