Monday, October 13, 2003
AP: 1/4 of U.S. troops in Iraq lack good body armor
The Associated Press reports tonight that funding delays and other procurement problems have stalled the deployment of "Interceptor" body armor to soldiers in Iraq, leaving thousands without the critical gear. This despite after-action reviews from Afghanistan and Iraq saying this body armor saved hundreds of lives with its ballistic protection (see also this story and this story); this despite billions spent so far in the war on terrorism; this despite promises from politicians on both sides of the aisle to take care of the troops.
Delays in funding, production and shipping mean it will be December before all troops in Iraq will have the vests, which were introduced four years ago, military officials say.Analysis: This is a monumental logistics screwup for the Army's procurement community, the Office of the Secretary of Defense, Congress (especially the Armed Services committees), and for the White House. Unfortunately, it's hard to pin the blame on any one office, or even on any one administration, because the blame belongs to lots of people who touched this program over the last several years. The initiative to develop new body armor may have started as early as the Reagan Administration; this particular program dates back to the Clinton Administration. The earliest decisions about how many Interceptor vests to buy and when were made when President Clinton held office.
However, the current administration doesn't get off the hook that easily. When the decision was made to invade Iraq in late 2002, this shortfall could/should have been identified, and dealt with. The blame for that mistake starts with Army logisticians and runs all the way up the chain of command to the E-Ring of the Pentagon and to Congress. The job of logisticians is to anticipate requirements and move resources to the right time and place on the battlefield to influence the fight. Clearly, this requirement was not anticipated, or decisionmakers at various levels decided to ignore this requirement.
As a nation, we have let our soldiers down by sending them into harm's way without this equipment. Our soldiers can make do without a lot of creature-comforts when necessary, but this is absolutely mission-essential equipment that no soldier should have crossed the LD without. What's even worse is that the distribution of this gear has been inequitable thus far, with reservists worse off than active units, and some active units worse off than others. I've received no less than a dozen e-mails from reservists saying they were told they would get this gear only after every active-duty soldier got it. (Query: is there any legitimate distinction between an active-duty soldier and mobilized reservist when you're both deployed to a combat zone?) Many said they had already bought their own ceramic plates over the Internet with personal funds and/or unit funds, because they could/would not wait for the Army to procure this gear. I think that's despicable, and something must be done.
So what can be done? Congress typically doesn't move at the speed of light, but it can when it wants to. If Congress was willing to jump through its fourth point of contact (paratroopers know what this means) to legislate authority for the Do Not Call list, then they can also move heaven and earth to fund body armor for our soldiers. Similarly, the Pentagon could do a lot to acquire, ship and distribute this equipment once it's procured. As my old First Sergeant used to say: the maximum effective range of an excuse is 0 meters. So far, all I read in this article is a litany of excuses from offices in the Executive and Legislative branches about why this process is taking too long. Tell that to the guys in Iraq waiting for their body armor while they face Iraqi guerillas armed with AK-47s and RPGs.
Why was Gitmo so vulnerable to espionage?
Richard Serrano asks that question in today's LA Times, and answers that the Guantanamo Bay facility was not full of counter-intelligence measures to check on its people, and that it relied mainly on trust to keep everyone in line.
What has been learned is that while Camp Delta may have been secured from outside attack, its internal security system rested largely on trust — the belief that its staff, all of whom had security clearance, was loyal.Analysis: I'm not sure you can dismiss trust and personal loyalty so easily as effective mechanisms for maintaining security. After all, that's generally what keeps every military unit functioning in combat -- trust and unit cohesion. It's also what keeps most of our government running, although we have counterintelligence systems in place to detect leaks in a lot of places. Our society is not one that watches every person, every moment, everywhere. Even at Guantanamo Bay, we have not subjected our military personnel to that kind of regimen because it runs contrary to American norms and values. Trust and personal loyalty sometimes break down, as in the three Gitmo spy cases, but they still remain pretty effective. Indeed, I would say they're more effective on the whole than building a repressive society where every move is watched.
That said, there remain glaring holes in our security at Gitmo. Trust aside, we should've been screening luggage on the way out and maintaining tigher control over classified documents. It may be the case that too much is classified at Guantanamo, thus making this latter job very hard. Regardless, physical security must be the foundation of any larger security effort at Gitmo, and physical security entails placing an absolute quarantine around this prison and around the larger base where our personnel are living. If the intelligence there is so valuable, then we ought to do what's necessary to keep it secret.
Sunday, October 12, 2003
The story of the 'Lackawanna Six'
The New York Times has an excellent story on the saga of the 'Lackawanna Six' in Sunday's paper. The case was brought against six men for providing material support to foreign terrorist organizations, including attendance at an Al Qaeda training camp in Afghanistan, among other charges. Ultimately, the six men pled guilty to various lesser offenses, in exchange for information and the government's pledge not to designate them as enemy combatants. The case has generated some amount of interest already, as a possible example of Al Qaeda "sleeper cells" in America. This article discusses that idea, but instead focuses on the ways this case has forced law enforcement officials to retool their criminal enforcement paradigm for terrorism.
. . . an examination of the case by The New York Times and the PBS documentary program "Frontline" demonstrates that behind Washington's sweeping proclamations is a more measured victory over a profoundly ambiguous threat.Analysis: This is a great story, which is rich in detail. It really was a coup for the NY Times to recruit Lowell Bergman, played by Al Pacino in the movie The Insider, and Matthew Purdy is an exceptional reporter as well. Both have written a story that deserves a read from both anti-terrorism insiders and the public alike.
Terrorism will likely be an issue in the 2004 presidential election, as either a subset of national security or a major issue in its own right. I believe the Democratic candidates will soon start to use this issue in the primaries to appeal to their core constituencies -- liberal Americans who feel their civil liberties are at risk with the current administration. The Lackawanna Six case will be a major piece of that argument, just as President Bush used the Willie Horton case in 1988 to appeal to the fears of moderate and conservative voters. (In principle the two are the same; in practice the latter is inherently more dirty than the other as far as political tactics go.) In the general election, I believe this will be an issue too. The Democrats will likely use this issue as a wedge to separate moderates from the Republican Party, and I think they will be successful.
Update: I intended this last note to be controversial, and sure enough, I've gotten some e-mail. Ryan Booth thinks I'm way off the reservation with the political comparison between the Lackawanna Six case and the Willie Horton issue of 1988. Clearly, the facts are different. However, the political strategies behind each issue are similar:
- The use of an issue which appeals to fear and insecurity among voters (terrorism and violent crime). However, in the Horton instance, the argument was if you choose Gov. Dukakis, you will be less safe from criminals. In this case, the argument will be that if you choose George Bush, you will be less safe from your own government. Similar, but different.
- The use of an issue which appeals to each party's respective base, as well as moderates.
- The meta-narrative that "You can't trust this candidate on X issue" that lies behind each. In Horton's case, it was "You can't trust Mike Dukakis to be tough on crime." In this case, it will be "You can't trust John Ashcroft with your civil liberties.
So at the end of the day, the two arguments are not exactly the same. But they share some common meta-narratives and themes. At each argument's core, there is an appeal to fear.
Saturday, October 11, 2003
An $87 billion slush fund?
Fred Kaplan at Slate thinks that's the best description for the President's appropriations package for Iraq. In particular, Kaplan points out a few places where the Secretary of Defense can move money around within the $87 billion package, or even borrow from other parts of the $400 billion Pentagon budget, to pay for current operations in America's war on terrorism. The guidance in this budget document is as vague as the phrase "war on terror", thus leading Kaplan to criticize the budget sections as a slush fund.
Add them all up: $9.3 billion—11 percent of the entire, already-controversial sum (and that doesn't include the expandable loophole provided by the "not less than" clause).Right -- Congress deserves much of the blame here. It is true that the President recommended this legislation to Congress in accordance with his Art. II, Sec. 3 power to "recommend to their [Congress'] Consideration such Measures as he shall judge necessary and expedient". (Bonus fact: the President actually initiates more legislation than Congress under Art. II, Sec. 3, a development widely traced to the rise of the modern administrative state and the need for large packages of legislation to guide each executive department.) That said, Congress never leaves a piece of Presidential legislation alone, and they could easily add conditions and other requirements to these parts of the President's $87 billion package. But they haven't.
There are two reasons why not -- one legitimate, one political. Legitimately, the Pentagon needs some discretion in the way it allocates its funds. Here's a simple example why. One day, the Iraqi guerillas are attacking vehicles, so you need vehicle parts. Next month, the Iraqi guerillas start attacking base camps, so you need to buy new construction materials. If the budget were too detailed, the SecDef and his staff couldn't move that money around. This is oversimplified, but you get my point. You also have timing issues in play, where the Pentagon probably doesn't want to slow down the funding process by having to report to Congress every time it moves money around.
Secondly, this is a political punt by Congress. The members of Congress don't want to tackle the systemic issues for why such a large appropriations package is needed (e.g. the lack of good body armor for every soldier in Iraq). The members also don't want responsibility for deciding how to spend this $87 billion, either because that responsibility properly lies in the Pentagon, or because they want the freedom to attack these spending decisions down the road. And the list goes on.
Does a slush fund like this really matter? I'm not sure. Certainly, it can hide spending that the American people and its representatives might not otherwise approve of. But I would balance that oversight problem against the practical problems of vetting every expenditure with Congress -- and still having time to get the money to the right time and place on the battlefield. Congressional appropriations are a cumbersome process, and we can't have soldiers' fortunes riding on it.
Personally, I'd be much more concerned about some of the structural issues revealed in this supplemental request, like the lack of body armor, the problems with M2A2/A3 Bradley Fighting Vehicle track procurement, ammunition shortfalls, radio batteries, and other parts problems which affect the entire Army and Marine Corps right now. Put bluntly, the warehouse shelves are dry. We have used up many of our peacetime stockages of key items that soldiers need to fight in Iraq. The problem will only get worse with time. Moreover, as we force defense contractors to jumpstart production of these items, we incur significant startup costs. Frankly, I don't think that good planning was done before we crossed the LD about precisely what we'd have to buy over the long haul. I think our optimistic expectations of this occupation infected every aspect of planning -- from troop deployment orders to orders for SINCGARS radio batteries. If I were an enterprising journalist in Washington, that's the story I'd be writing right now. And if I were an enterprising Congressman, that's the issue I'd be pursuing too.
Update to note on FedEx's anti-terrorism efforts
A number of readers have written me to remind me of the police forces created during the late 19th Century within most major railroad companies. Originally, these forces were created to police the rail lines against Indian tribes, bandits, and other hazards. Today, they continue in this law enforcement role, although against other threats. Burlington Northern & Santa Fe Rail is one example of a railroad company with its own police force, and one reader writes that these police take an active role in making sure the rail lines stay safe.
Our facilities are crawling with these folks - they carry guns, have arrest power, and nationwide jurisdiction. The police forces of the various railroads cooperate with each other and law enforcement to a great extent, and could definitely provide a model as to how other types of companies could implement the same thing, though I think the railroads possess of lot of maturity in handling the power that comes with it due to their length of experience.Railroads are just one part of America's critical infrastructure, however. The anthrax attacks showed just how vulnerable our country can be to a small strike against one aspect of its infrastructure -- in that case, the public postal system. Financial institutions, railroads, water treatment plants, power plants and distribution networks, and other parts of America's infrastructure all need to be hardened against the threat of terrorism. The paradox of anti-terrorism planning is "the more you protect the hard targets, the more vulnerable you make the soft targets." If we harden our airports and public sites against terrorism, we will simply make our private sites more attractive as targets. America depends on its infrastructure, and most of its infrastructure is private, not public. Thus, we need to encourage more companies to be proactive like the railroads and FedEx, and to think about how they can protect themselves.
Update II: Several readers were kind enough to write me about an incident in 1994 where one of FedEx's planes was hijacked and nearly crashed into its main hub in Memphis. I'm sure I read the news of this incident back then, but it had totally left my mind until now. No wonder FedEx takes anti-terrorism seriously. My real hope is that there's cross-talk between the logistics and airline people at FedEx and the law enforcement people on the Memphis FBI Joint Terrorism Task Force (JTTF). The FBI holds some of the best legal and investigative minds in the world, but they're not subject-matter experts on everything.
Friday, October 10, 2003
Group takes Gitmo appeal to the Supreme Court
A coalition of retired military officers, judges, ex-POWs, and others has filed an amicus curae brief urging the U.S. Supreme Court to hear the appeals of detainees held at Guantanamo Bay. The petition on behalf of 12 detainees was dismissed by lower courts on procedural grounds, and the group is now asking the high court to overturn that dismissal so the case can go forward on the merits.
Representing seven groups that have filed friend-of-the-court briefs on behalf of 16 detainees at the base, the former officials said the detentions of more than 650 terror suspects without access to lawyers is a mistake of law that hurts the United States' reputation and could endanger Americans elsewhere.Also today, the New York Times reports that the Red Cross has restated its disapproval of the way America is behaving at Guantanamo. This is significant for a couple of reasons. First, the ICRC has enormous international prestige, as well as moral authority. Second, the Third Geneva Convention charges the ICRC with what amounts to the job of executor. If this body thinks our behavior at Gitmo is inconsistent with the Geneva Convention, they're probably the best ones to make that call.
Christophe Girod, the senior Red Cross official in Washington, said on Thursday in an interview at the United States Naval Base here, "One cannot keep these detainees in this pattern, this situation, indefinitely."Analysis: My thoughts on this subject have not changed substantially since I wrote "Extend Geneva to Gitmo" in the Washington Times in early 2002. For principled and practical reasons, we ought to give the detainees at Gitmo the protections of the Third Geneva Convention, recognizing that those rules were written for a different paradigm of war and that we need to adjust our rules to fit the reality of today's war on terror. At the very least, we need to give these detainees Art. V tribunals to determine whether they are lawful or unlawful combatants -- and what legal process they are entitled to as a result of that decision.
In America's rush to condemn the men currently imprisoned at Guantanamo Bay, we have forgotten the reasons why we adopted the Geneva Convention in the first place.One final note: I often use the phrase "the moral high ground" and its close cousin "moral authority". I should define these terms. I use "moral high ground" to mean a political or policy position where you are doing the right thing. Not the technically legal thing, or the political expedient thing, but the morally right thing. To the extent that morality is subjective, this is vague term. However, I still feel there are right and wrong things in this world, and that most Americans can tell the difference. "Moral authority" is the political capital that accrues from doing the right thing. It's a powerful tool, and one that we can use domestically and abroad to support our war on terrorism. When you don't do the right thing, you lose moral authority. Unfortunately, I think that's where we're at with Gitmo.
Thursday, October 09, 2003
FedEx starts its own police force to fight terrorism
Today's Wall Street Journal (subscription required) carries an interesting article about FedEx's initiative to counter terrorism in its operations. Faced with the responsibility for a vast cargo airline and distribution network, FedEx really had no ability to tap into official sources for intelligence about terrorist threats or countermeasures. Partly to tap into these resources, and partly to form an investigative unit of its own, FedEx persuased the state of Tennessee to authorize a police force for the corporation. Among other things, this has enabled FedEx to become a part of the Memphis area Joint Terrorism Task Force, an interagency working group managed by the FBI.
More importantly for FedEx, having a private police force qualifies the shipping company to serve on a regional joint terrorism task force, overseen by the Federal Bureau of Investigation. The 66 task forces currently in operation across the country -- which consist of local, state and federal officers -- are entrusted with more-sensitive and specific data regarding terrorist threats than businesses usually receive. FedEx is the only major air carrier that is a task-force member.Maybe... but on the other hand, FedEx has a lot of stakeholders who have various degrees of power to keep the company on the right path with respect to civil liberties. From a purely economic perspective, I imagine shareholders and directors will be quite reticent to allow any abuse of this power that could lead to a lawsuit -- or worse yet, a class action suit on behalf of a large injured class. Moreover, FedEx is an extremely visible company that depends on its public image of trustworthiness for its business viability. I don't see them doing a lot to jeopardize that.
I think this is a great idea, and honestly, I wish more companies would lean forward in their foxholes like FedEx. The overwhelming majority of America's critical infrastructure resides in the private sector -- power grids, dams, transportation, rail, water supply, etc. An attack on any aspect of America's critical infrastructure would ripple through every aspect of American society, and inflict billions of dollars of damage. The FBI can't protect everything, and it should focus its resources on proactively investigating intelligence about terrorism. The firms themselves should focus on defending their assets -- which they know best -- and preparing to manage the consequences of an attack. There are legal issues inherent in giving this kind of power to private entities, but I think the benefits outweigh those risks, and that those risks can be mitigated.
Don't mess with Texas. . . or use your middle finger there either
Howard Bashman reproduces part of a Texas Court of Appeals decision that affirmed a motorist's right to give another driver the middle finger, and that such a gesture was not unlawful because it did not tend to incite an immediate breach of the peace. The court explained its reasoning in footnote 1:
The "bird" is "an obscene gesture of contempt made by pointing the middle finger upward while keeping the other fingers down." Merriam-Webster OnLine, at http://www.m-w.com. This gesture is of ancient origin:Who said judges have no sense of humor? I suspect that this decision would be geographically and contextually dependent, however. Giving the bird in some places would certainly cause an immediate breach of the peace. In other places, it might be regarded as a friendly gesture. Like obscenity, this kind of thing is harder to define as anything more precise than "I know it when I see it."[T]he middle-finger jerk was so popular among the Romans that they even gave a special name to the middle digit, calling it the impudent finger: digitus impudicus. It was also known as the obscene finger, or the infamous finger, and there are a number of references to its use in the writings of classical authors. . . . The middle-finger jerk has survived for over 2,000 years and is still current in many parts of the world, especially the United States.
Formal charges to come against Gitmo suspect
CNN reports that the Pentagon has decided to press formal charges in military court against CPT Youssef Yee, the Muslim chaplain at Guantanamo Bay who stands accused of espionage. The initial charges will be for relatively minor offenses, such as the mishandling of classified documents. Sources tell CNN that more charges will follow over the next several days and weeks, possibly to include capital counts of espionage.
Charges of espionage, which Yee could eventually face, are likely to take considerable time to assemble.More to follow . . .
Why do Democrats swoon over men in uniform?
Ghosts of the 1960s linger in the relationship between the military and the left
Michael Kinsley asks this question in Slate today, trying to answer why Democrats seem to be so taken with retired-Gen. Wesley K. Clark.
The notion that liberals disdain people in uniform was always a bit of a myth. Even during Vietnam, concern for the loss of young American lives was probably the anti-war movement's most powerful motivation. Since then, sneery right-wingers have had it both ways about liberals and the military: When liberals oppose military action, conservative voices accuse them of betraying our fighting men and women. When liberals support military action, they are accused of callous indifference to the lives of American soldiers.That's one piece of the puzzle. Another more personal account comes from Robert Poe in "Prisoner's Dilemma", which ran in the October issue of The Washington Monthly. Mind you, not every Democrat was a draft resister who was sent to prison, and not every Democrat bears the guilt for those who did so. Nonetheless, I think some of these issues continue to plague the left to this day, and Mr. Poe's account adds a voice not often heard to this debate.
While Bush's poll numbers have been plummeting, the drop reflects worry over the continuing chaos in Iraq more than any growing anger at administration members for ducking service in their youth. Partisan Democrats may be furious that a president who sidestepped combat now poses as a war hero. But what really drives Democrats crazy is that Bush seems to have paid no political price for doing so.The puzzle's still not complete. I think that Mr. Kinsley and Mr. Poe add two important parts of the picture, but there's more to be written.
First, Mr. Poe's right that the Vietnam War set in motion a number of dynamics which affect partisan politics to this day. After the advent of the all-volunteer force in 1973, the Vietnam War had an enormous impact on the self-selection of America's "best and brightest" for military service. No longer did the George Herbert Walker Bush's, John F. Kennedys and Al Gores of America's elite join the military, as they did in WWII and Vietnam respectively. Indeed, neither did the young conservatives of the 1970s, who opted instead for the fast-track to money and/or power (see, e.g., Dick Cheney, John Ashcroft, Paul Wolfowitz, Tom Delay, Richard Perle, etc)
Fast-forward thirty years, and suddenly you have an elite on both sides of the aisle with a dearth of military experience. The number of veterans in Congress has dropped over the last 30 years; so too has the number of veterans appointed to the bench or executive positions. Unfortunately, this dynamic affects the Democratic Party more, because of the self-selection inherent in an all-volunteer force. Values and attitudes towards the military translate across generational lines into the choices made by children. More than ever, with our all-volunteer force, these choices shape the military's composition, which in turn produces the pool of eligible veterans to serve at high levels of our government.
My experience, growing up in liberal Santa Monica during the 1980s, was that most parents did not encourage their children to consider military service -- even for a brief tour, even for the educational benefits. A lot of this traced, in my opinion, to the attitudes harbored by my friends' parents who grew up during the 1960s, and held certain attitudes towards the military as an institution. Those attitudes were passed onto the children of my generation, who have had the opportunity to choose or refuse military service in the absence of a draft. These attitudes were enough to shape school choices and career choices, and steer the overwhelming majority of my friends away from uniformed service. Those who did serve usually had some specific reason, like college financial aid or a service academy appointment. Most went off to college, found a career, and moved into adulthood without a serious glance towards military service.
The result is an ever-increasing divide in American society between those who've served and those who haven't. I have no data to back this up, but my emprical observation is that this divide correlates quite well with political attitudes and socioeconomic status, with both liberals and the wealthy shunning military service. (One caveat: these same groups that shun military service often flood other forms of public service. I think that fact deserves mention, although for obvious reasons, such public service doesn't carry the same credential for issues of national security.) Again, fast-forward 30 years after these decisions were made, and you see a liberal and wealthy elite that contains disproportionately less veterans.
So what? Why does veteran status matter in politics?
At the end of the day, this boils down to the politics of identity. A white man cannot criticize affirmative action with the same credibility as a black man; he even risks being called a racist for his views. An old man cannot criticize the right to choose an abortion without being labeled a hypocrite and worse. Similarly, a non-veteran cannot advocate for military action -- or the lack thereof -- with the same credibility as a veteran. I don't think this is the most intelligent want to assess credibility; I don't think someone's c.v. necessarily affects the quality of their ideas. But the American public does not see it that way. These credentials serve as shorthand for the American public; they enable voters to make decisions about credibility and trustworthiness.
The recognition of this fact is why I think that Democrats swoon over men in uniform. It's more than guilt over opposition to Vietnam; it's more than trying to offset the political advantage of the incument president. This swooning is about demonstrating credibility on issues of national security where the Democratic party currently has -- rightly or wrongly -- less credibility than the GOP. Wes Clark and John Kerry both realize this, and have each tried to leverage their military records for political gain. Whether their war records will make any difference in how they serve as Commander-in-Chief is a matter for debate. (FDR did well as a wartime President with no uniformed service; LBJ did a less than stellar job despite service in WWII.)
I don't like the politics of identity, and I suspect most politicians don't either. But the Democrats have to play the game, and that means appealing to voters in 2004 on national security issues. If winning takes putting a veteran on the ticket, I wouldn't be surprised to see Dems doing what it takes to win. I'm okay with that. After all, candidates have been picked for decades because of their geographic value, religion, age, and other "important" reasons. In 2004, the key constituency may not be Southerners or moderates or the elderly -- it may be Americans who care about their security. If that's true, why not pick a veteran?
Wednesday, October 08, 2003
Sodomy and 'don't ask, don't tell' go to court
The U.S. Court of Appeals for the Armed Forces heard arguments yesterday over whether the Supreme Court's decision in Lawrence v. Texas requires the military's sodomy statute -- Art. 125 of the Uniform Code of Military Justice -- to be overturned. The facts of the case seem tailor made for the challenge: an airman was prosecuted for having off-base sodomy with another airman. The charges squarely implicate Art. 125, notwithstanding some factual issues at trial surrounding consent and even whether the sodomy occurred. Howard Bashman at How Appealing provides this first-hand report from the argument yesterday before the CAAF. (Also see this discussion of the issues from NPR this morning)
. . . the judges appeared troubled by the positions taken on all sides. Counsel for the government (a career military lawyer), insisted (unsurprisingly) that Lawrence did nothing to Article 125. Citing Justice Scalia's characterization of the Lawrence majority opinion, she insisted that Lawrence, at best, subjects Article 125 only to rational basis review -- to which one of the judges pithily responded, "The traditional way to read opinions is to look at a the majority opinion, not the dissent." Nevertheless, even assuming that rational basis review should apply, two of the five judges seemed clearly troubled by the rational bases offered by the government -- unit cohesion, maintenance of discipline, morale, etc. Article 125 criminalizes homosexual as well as heterosexual sodomy, and some of the judges couldn't seem to understand how private, consensual sodomy (whether heterosexual or homosexual) could possibly relate to these legitimate interests. While government counsel appeared to concede that some heterosexual sodomy falling under Article 125 would be protected by Lawrence, she insisted that Article 125 was constitutional as applied to this particular defendant, who was convicted of both consensual and nonconsensual sodomy. When pressed to explain why, she rather conclusorily returned to the litany of "unit cohesion, maintenance of discipline, and morale" -- an explanation with which the judges did not seem particularly impressed.Analysis: Shortly after the Court's opinion in Lawrence, I wrote a piece for Findlaw and CNN.Com opining that the courts would probably defer to the military on deciding whether "don't ask, don't tell" should remain in place. This conclusion was based on the courts' longstanding tradition of deference to the executive branch on national security grounds -- present in both the gay rights and terrorism contexts (see, e.g., the Hamdi and Padilla cases). If this were a challenge to "don't ask, don't tell" (codified at 10 U.S.C. 654), I would stand by that conclusion with respect to this case before the CAAF. But this is not a facial challenge to "don't ask, don't tell" -- it's a challenge to the military's sodomy statute. The Supreme Court held in Lawrence that you cannot criminalize sodomy, among other things, in an extremely powerful and broadly-written opinion by Justice Kennedy. The CAAF judges are bound by Supreme Court precedent just as any Art. III appeals court would be (the CAAF actually sits in Art. I as an executive branch court). I think they will apply Lawrence to hold that Art. 125 of the UCMJ is unconstitutional, and that the military can no longer criminalize sodomy.
That said, I do not think they will rule so broadly so as to overrule "don't ask, don't tell." For one, that's not the issue of the case -- this is a criminal appeal of a sodomy conviction, not an appeal from a discharge for violation of 10 U.S.C. 654. Second, as a matter of administrative law, the "don't ask, don't tell" policy can stand separately from the sodomy statute; one is not legally dependent on the other. (The same is also true of the Solomon Amendment, which threatens to cut off federal funding for universities if the universities ban ROTC or military recruiting on campus. This funding restriction is not legally dependent on the the legality of Art. 125 or even 10 U.S.C. 654. A challenge to the Solomon Amendment predicated on the legality of 'don't ask, don't tell' conflates the issues and is almost surely destined for failure.) If the court overturns Art. 125, it will certainly give the Lambda Legal folks some more ammunition for their fight against "don't ask, don't tell". But the CAAF's decision on Art. 125 -- if it overturns the statute -- will not overrule that "don't ask, don't tell" per se.
Out of the loop
SecDef says he didn't know of White House plans to reorg for Iraq
The Washington Post (and other media) report today that Secretary of Defense Donald Rumsfeld was caught by surprise when the White House announced that it would create a new top-level working group for the management of America's occupation of Iraq.
Rumsfeld said in an interview with the Financial Times and three European news organizations that he did not learn of the new Iraq Stabilization Group until he received a classified memo about it from national security adviser Condoleezza Rice on Thursday.Analysis: Two quick points emerge from this story. First, Don Rumsfeld is no teddy bear, and he's no diplomat either. Asking reporters from the Financial Times (a British paper) and three other European papers if they speak English in an interview is a surefire way to make enemies. It's insulting, and it's the kind of comment likely to enrage the citizens of Europe once again about Rumsfeld.
The second point of analysis is that the SecDef has been cut out of the loop. Not just in a small way, like he wasn't invited to some ceremony at the Rose Garden, but in a very big way. Until this working group was formed, the chain of command for Iraq ran straight from the President to the SecDef to L. Paul Bremer III and General John Abizaid, the CENTCOM Commander. Now, it looks like we have a working group interposed between the President and SecDef, and more importantly, we have the elevation of State and other cabinet agencies to a peer position within this group. That the SecDef wasn't informed of this before it happened is very significant, especially in this administration. I think it's too early to tell precisely what this means, but I think it's one indicator that SecDef Rumsfeld might not be asked back for a second Bush administration.
High crimes at Guantanamo Bay
I've written an article for Writ, an online legal magazine, on the allegations at Guantanamo and why they're worthy of capital punishment if true. The piece looks at why espionage and aiding the enemy charges in this case are so serious, and how the actions of a few men might damage the entire global war on terrorism.
The essence of the charges against these three men is this: According to the government, they gathered classified information about Guantanamo Bay, and interfered with the interrogation effort there. If these allegations are proven, the men could be convicted of capital espionage, defined as communicating, delivering, transmitting, or attempting to communicate, deliver or transmit information about nuclear weaponry, military spacecraft, early warning systems against large-scale attack, war plans, communications, or other major weapons systems. (A lesser, non-capital charge of espionage exists for communication information about other secret matters).
Tuesday, October 07, 2003
The absentee ballot nightmare in California
Could thousands of deployed soldiers be disenfranchised by this rapid recall?
The New York Times has an interesting story today on the mess we're likely to see in the next several days concerning absentee ballots for today's gubernatorial recall election. The Times reports that a record 3.2 million Californians have requested absentee ballots, and that just 2 million of those have returned them thus far -- leaving 1.2 million ballots outstanding as of election day.
Of that total, 800,000 absentee ballots and an expected 400,000 ballots that will not be counted until after election night because of anticipated snags will not be included in preliminary results from the counties, said Stephen Weir, the clerk-recorder of Contra Costa County in Northern California and the treasurer of a statewide association of county clerks and registrars.Let me add another variable here: military voters. I probably should've written an op-ed about this two months ago when there was time for the ACLU to make these arguments before the Ninth Circuit. If I'm right, thousands of military voters will not have their votes counted in this election. The culprit is the mail system, and specifically the tension between the tight timeline (60 days) of this recall and the relatively slow mail pipeline to deployed soldiers overseas.
Federal law (the "The Uniformed and Overseas Citizen Absentee Voting Act") provides for some mechanisms to assist military personnel overseas with voting, but these mechanisms are all premised on the fact of a regularly scheduled election with a lot of lead time.
The UOCAVA provides for a "back-up" ballot, called the Federal Write In Absentee Ballot ("FWAB"), should a citizen overseas not receive his or her regular ballot from the state or territory. Under the UOCAVA, citizens can only use the FWAB under three, very specific conditions. To be eligible for this ballot, the citizen must: (1) Be located overseas (including APO/FPO addresses); (2) Have applied for a regular ballot early enough so that the request is received by the local election official at least 30 days before the election; and (3) Not have received the requested regular absentee ballot.In this case, Californians in uniform overseas have not had such lead time. They really have had 60 days, assuming they were plugged into the news and monitoring this situation. It's possible that a Californian deployed overseas might have missed both the 30-day cutoff for requesting an absentee ballot and the 30-day cutoff of requirement (2) above.
There are really two groups of soldiers overseas that are likely to be disenfranchised here:
(1) Reservists deployed from their homes inside California. Thousands of reservists have been mobilized from California and sent to Iraq. These soldiers likely deployed with a mail forwarding order in place, so that their mail would be forwarded by the U.S. Postal Service from their civilian address to their military APO address. In the best of times, the USPS can forward such mail domestically in a few days. In the military, such mail deliveries can take longer. Mail delivery in theater is less frequent (2-3 times per week), and it has to account for variables such as security.
- Best case (and also most unlikely) scenario: the reservist applied for an absentee ballot at the time of deployment, possibly in anticipation of the March 2004 primary. The absentee ballot gets sent to the home address in California, then forwarded to the soldier, who may or may not have time to read up on the issues. He/she then sends it back to California through military mail, which can take 2 weeks or longer to get back to the states.
- Middle case: the reservist deployed with other things on his mind and did not pre-request an absentee ballot. The regular ballot announcements arrive in the mail, get forwarded to him in Iraq, where they arrive after the absentee ballot deadline has already passed. It's too late to request an absentee ballot, and this soldier is precluded from using a Federal Write-in Absentee Ballot under the UOCAVA.
- Worst case (and also quite likely): the reservist wasn't even registered at the time of the election, possibly because he just turned 18 or because he had other things on his mind. He wants to start voting, because he feels a sudden sense of civic engagement while deployed to a combat zone. The soldier learns of the election late because he gets an infrequent news feed through his unit newsletter and First Sergeant. The soldier tries to register to vote, but by the time his registration gets to L.A. County's Registrar-Recorder, he's missed the deadline for the Oct. 7 election.
(2) Active duty soldiers with a home of record in California. There are literally thousands of these soldiers on active duty, and I was one them. For various reasons (such as maintaining residency for future tuition purposes), these soldiers maintain California as their state of legal residence. Most of these soldiers are permanently registered as absentee voters, meaning that their absentee ballots get generated automatically just as an infirm person's ballot would be. However, these soldiers' ballots still have to contend with the military mail system to get to and from the combat zone. And it's unlikely the soldier will have full access to the Los Angeles Times or San Francisco Chronicle to become an informed voter, so the vote may be somewhat diluted by an information deficit.
Most soldiers won't fit any of these hypotheticals, but they'll fall somewhere near the middle case. Legally, it's hard to pin the blame for why their vote won't count. Certainly, the tight timeline of the election deserves most of the blame, because it's simply too short of a time window for the mail and absentee ballot systems to work properly. The mail service deserves some of the blame too. So do the soldiers, for not pre-requesting absentee ballots.
Unfortunately, the bottom line is this: many of these soldiers' votes won't count. I think that democracy suffers when anyone's vote goes uncounted. But I think it's patently offensive that many of our soldiers serving in combat overseas should lose their democratic voice because of the mechanics of this recall.
One of the strongest arguments for the 26th Amendment was that Americans who were old enough to fight and die for their country ought to have the right to vote. I think the connection between suffrage and service is very real, and that these soldiers are literally earning their right to vote right now with their blood and sweat in Iraq. Our election system has to do better at making their votes count.
Update: Every news outlet in Los Angeles is projecting a big win for Arnold, which essentially makes the issue of military absentee ballots moot. I think that's true as a practical and legal matter, but the larger issue of military disenfranchisement remains. I still think we need to do more on this front.
Monday, October 06, 2003
The value of intelligence
Army leaders lament the lack of "human intelligence" in Iraq
Greg Jaffe has a great piece in the Wall Street Journal (subscription required) about the struggle by U.S. commanders in Iraq to fight a war without sufficient amounts of "HUMINT", or "human intelligence". A consensus seems to have emerged that our commanders have sufficient combat power ("boots on the ground") to do their job now in Iraq -- but that they don't have sufficient intelligence to fight the guerilla networks they now face in Iraq.
Brig. Gen. Martin Dempsey, who commands all of the 35,000 U.S. troops arrayed across Baghdad, came here in July with orders to transform the city into a stable and secure place. Since he arrived, 16 of his troops have been killed and about 170 wounded. In his left front pocket the general carries 16 laminated cards, each bearing a picture of a dead soldier, his address, date of birth and the names of his spouse, children and parents.Emily Hsu also writes on this issue today in Inside the Army (subscription required), saying the Army is looking to deploy some of its latest C4ISR ("Command, Control, Communications, Computing, Intelligence, Surveillance & Reconnaissance") systems to Iraq to help bridge the HUMINT gap. Specifically, the Army hopes to speed the procurement processes for a few systems that have the potential to aid commanders in visualizing the enemy and the battlefield in Iraq.
Systems being eyed include an automated language translation service, as well as the “PackBot” unmanned ground vehicle, which has been operationally tested in Afghanistan clearing caves and compounds, DOD and Army officials said in an Oct. 1 interview with Inside the Army.Analysis: While I applaud the initiative of the Army in pushing forward its procurement in these areas, I don't think this will be enough to cure the problems that Mr. Jaffe writes about in today's Wall Street Journal. Specific, actionable, credible, exploitable intelligence is the kind of stuff that generally comes from having smart intelligence operatives and analysts on the ground in Iraq, working at the muddy boots level. You can leverage technology only so much to manage information and speed up your OODA loop. At some point, you simply have to go out there and get good raw information to feed into these intelligence systems. That's the real crux of the problem.
In much of Iraq, I think this intelligence gathering effort is going well. There is a direct correlation between our relations with the Iraqi people and our ability to collect intelligence from them. In places like Basra and Mosul, where coalition troops have stabilized the situation, this effort is going well. In Baghdad and the Sunni Triangle, it's going less swimmingly.
One bit of good news is the increasing "Iraqification" of the stability mission. The graduation this weekend of the first battalion of Iraqi troops is a step in the right direction, and it may ultimately become the key to this intelligence problem. It should be obvious that Iraqis can collect intel better than Americans -- if only for linguistic and cultural reasons. If deployed with American forces in the tough spots, these troops will contribute a great deal towards the gathering of actionable intelligence about Iraqi guerilla networks. Learning about your enemy is never easy. But I think that these Iraqis represent our best hope in gathering the intel we need to accomplish our mission in Iraq.
Update: Terry Boyd has a great story in the European Stars & Stripes about the way intelligence gets used at the tactical level to conduct a raid.
Earlier in the week, Chenoweth had been relayed a tip that Maj. Gen. Rafi abd Al-Latif Tilfah al-Tikriti, former head of Iraq’s security apparatus and No. 15 on the United States’ most wanted list, may be hiding along with two other Saddam loyalists in an area at the confluence of the Tigris and Diyala rivers.Great reporting from one of the few reporters still embedded with the force in Iraq. Also see this story on the "Three Block War" from Mr. Boyd.
Wednesday, October 01, 2003
Notes on Wes Clark's new book
Fred Kaplan, the War Stories columnist for Slate, has some "talking points" on Wes Clark's new book "Winning Modern Wars: Iraq, Terrorism, and the American Empire," which is basically a critique of U.S. foreign policy since Sept. 11. And no, the timing is not coincidental -- this is clearly intended as Clark's national security platform for his presidential campaign. Kaplan, who's no stranger to defense issues, offers a pretty even-handed assessment of the book, which I will probably go buy now to add to my copy of Waging Modern War.
Page 130: A revelation:Thoughts... If elected, Wes Clark would probably be one of the most intellectual American presidents in history -- on par with Woodrow Wilson and Bill Clinton. His comments in an interview with Josh Marshall, his writing in this book, and his writing in Waging Modern War are all quite lucid, well informed, and right as a matter of policy. Unfortunately, a guy this prolific also has to deal with the burden of his prior statements, and that may become an issue for Wes Clark during the campaign. More to follow.
Senator proposes to pay for soldiers' full travel fare for leave from Iraq
Last week, I criticized the Pentagon's leave plan for soldiers in Iraq as being too cheap because it only paid soldiers' fare as far as Baltimore-Washington International Airport. Since then, the Pentagon has broadened its plans to cover the cost of soldier travel to a few other major hub airports -- but still not all the way home. Rick Maze reports in Army Times that Sen. Mark Dayton (D-Minn) has introduced a bill to change that.
“The least we can do is get them home and back at government expense,” Dayton said Monday as he introduced a bill, S 1670, making troops on R&R leave eligible for travel and transportation allowances.Analysis: I think this is a great idea, and frankly, it's the kind of thing that military planners should have done as an administrative matter. I'm not as familiar with the Joint Travel Regs as I was when I was on active duty. But I'm pretty sure that there is a way commanders could have taken care of this. In fact, I know for certain that some commanders tried to do this for their troops, only to have the idea vetoed at a higher level.
Note 1: The DoD travel card fiasco may be coming back to bite soldiers in the backside here. A few years ago, nearly every soldier had an American Express (or Bank of America) travel credit card issued to him or her, to cover the costs of official travel. Many service personnel abused those cards, creating a staggering amount of delinquent credit card debt and earning a black eye for the military from the financial community. The military responded by cancelling most travel cards, and placing strict controls on the system. Unfortunately, that hinders soldiers now who might use those cards to float the cost of their travel from Iraq (or from BWI) to their home of record, while they wait for reimbursement.
Note 2: There are serious equity issues that need to be addressed in this leave policy. Those are issues to be addressed at the lowest level, e.g. brigade and battalion level. But I would not be surprised to see the first leave approvals being given to certain groups of soldiers, such as those who distinguished themselves in combat, those who reenlisted, and those who have other compelling circumstances (such as the birth of a new child). I think in nearly all cases, commanders will do the right thing. But there may be some situations where commanders use leave as a carrot to induce soldiers to reenlist, and that would be unfortunate (and possibly illegal). Nothing will kill a unit's cohesion and morale faster than the perception of unfairness and inequity from the commander. Hopefully, that's not happening here.
USAFA scandal delays new Army Secretary's confirmation in the Senate
As I predicted a couple of weeks ago when the commission report was released on the U.S. Air Force Academy scandal, the Los Angeles Times reported today that Air Force Secretary James Roche's bid to become Army Secretary has been blocked in the Senate. Interestingly enough, the hold on Roche's nomination came from Armed Services Committee Chair John Warner, a Republican Senator from Virginia. Clearly, this goes beyond the partisan politics that often stalls many nominations in the Senate.
Having failed in the past to grill nominees for the top civilian job in the Air Force about allegations of sexual abuse, Warner told Roche that his committee would take no chances on approving the nomination until all questions had been answered.Analysis: The investigation should be complete in December, and then we'll probably have another round of confirmation hearings for Sec. Roche. These hearings will be quite nasty when they're held. Indeed, they may rival the Clarence Thomas confirmation hearings for vitriol and lewdness when the dust clears. My reading of the USAFA scandal is that there were serious problems at the Academy, and also serious problems in the Air Force chain of command that allowed the problems to continue for years. It's upsetting that Congress would exercise oversight of the Air Force through its approval of the Air Force chief's next career move. But the buck has to stop somewhere, and the Air Force Secretary's desk seems like a good place to me.
More information on the latest Gitmo suspect
The Los Angeles Times gives us some more details about Ahmed Mehalba, the man picked up at Logan Airport in Boston yesterday for allegedly carrying CD-ROMs full of classified documents about the military detention facility at Guantanamo Bay, Cuba.
The interpreter, 31-year-old Ahmed Fathy Mehalba, appeared in U.S. District Court in Boston on Tuesday and was formally charged with making false statements to federal agents after attempting to clear an airport security checkpoint Monday.The Boston Globe adds a few more details to the story:
During the questioning Monday night, Mehalba also acknowledged that he has an uncle who has worked in Egyptian military intelligence and that his girlfriend is a former US Army specialist who was caught with classified information on a stolen laptop in 2001.Analysis: Some of these details have real significance. The fact that he's a citizen means that he can't be charged by a military tribunal. In theory, he could be designated an enemy combatant and detained indefinitely without access to counsel (see, e.g., Jose Padilla). That's a real possibility here, although it's hard to understand how the government makes these decisions since it has moved forward in civilian court against some and through enemy combatant proceedings against others -- with no apparent principle to distinguish between the two paths.
The fact that he's been in the military, and more specifically, in the military intelligence community, means that he knows what he was doing and what he would've been looking for. Generally speaking, you want operatives (if you're the enemy) who know the inside of the system they're trying to gather information from. Fort Huachuca is the Army's military intelligence school, and it runs its counter-intelligence courses as well as its interrogator courses. Mehalba certainly fits the profile of someone you'd want to recruit, even if he was just giving general information about Gitmo that could then be passed back to Syrian or Al Qaeda officers.
The facts of his military background, and his family background, add a lot of color to this case. It's unclear how much of that will be admissable in court, if the government moves in federal court against him. My prediction is that Mehalba will plead guilty to some lesser-included offense in exchange for information about who he was working for. But if he doesn't, I'm sure the government is prepared to throw the book at him.