Tuesday, November 11, 2003
There aren't many non-fiction books that you can start and finish on a cross-country flight. The War on Our Freedoms: Civil Liberties in an Age of Terrorism is one of them. Despite the ominous title, this is not a series of tirades against John Ashcroft or the Bush Administration -- it's a series of moderate, well-written, well-researched essays in each aspect of the legal war on terrorism. I liked it so much that I plan to assign it for my class on American Law & Terrorism next quarter. If you're looking for a one-stop-shop book that covers everything from the USA PATRIOT Act to FISA to 18 U.S.C. 2339b, this is it.
Air Force sends forward non-capital charges against Gitmo interpreter
Senior Airman Ahmad I. Al Halabi will face non-capital charges before a general court-martial at Travis Air Force Base in California, according to the Air Force. Some of the charges were dismissed against Airman Halabi. The most important part of this news release is that the Air Force will not seek the death penalty for Airman Halabi, as it theoretically could have done under the UCMJ articles for espionage and aiding the enemy.
Charges referred include seven specifications alleging the accused failed to obey a lawful general order or regulation in violation of Article 92 of the Uniform Code of Military Justice (UCMJ); one specification alleging the accused aided the enemy in violation of Article 104; four specifications alleging espionage in violation of Article 106a; five specifications alleging the accused made false official statements in violation of Article 107; two specifications charged under Article 134 alleging the accused willfully retained documents without authority in violation of 18 U.S.C. 793; and one specification charged under Article 134 alleging the accused executed a fraudulent credit application scheme in violation of 18 U.S.C. 1344.Analysis: Despite the dismissal of certain charges and command decision to forgo the death penalty, I still think these are serious charges. Airman Halabi may still spend the rest of his life behind bars for the crimes he is alleged to have committed. We have no way of knowing -- based on the information that's been made public -- how much damage he did to America's national security at Guantanamo Bay. Presumably, that kind of evidence will be part of the trial in this case, and the members of Airman Halabi's military jury will have to weigh the facts of those crimes in determining whether he should be found guilty or not. Even then, we (the public) may never learn of these facts, if they are considered too sensitive to release to the public that they remain classified for the duration of the trial. We'll see.
1,300 reservists allege job discrimination after demobilization
The Washington Post carries this disturbing report today on complaints filed with the Department of Labor by soldiers who allege discriminatory treatment by employers upon their return from duty. Mobilized reservists enjoy the protection of two major laws -- the Soldiers and Sailors Civil Relief Act, and the Uniformed Services Employment and Reemployment Rights Act. More than 1,300 reservists have filed complaints with the Department of Labor saying their employers may have violated those laws, up from 900 in 2001.
Concerned about the rise in complaints, Labor Secretary Elaine L. Chao has released a televised public service announcement reminding employers that they must reinstate workers called to military duty. "They did their job -- now let's do ours," Chao says.Analysis: These two laws provide a lot of protections for active-duty and reserve soldiers, including protection from creditors and employers while overseas. But the protection is imperfect, as this story illustrates. The USERRA in particular contains loopholes through which employers can restructure themselves to eliminate jobs, or take other measures which have an adverse impact on the soldier. At the end of the day, our soldiers pay a heavy price for their decisions to serve in the military, especially those with jobs in the private sector. If we want reservists who are able to make a good living as civilians and serve their country as part-time warriors, we need to take a hard look at these legal protections and see if they need adjustment for today's reservists. The laws were written at a time when a major mobilization was only expected in the case of another world war -- that's no longer the case. Today's reservist must live with constant mobilizations, and I think these legal protections are probably insufficient for that situation.
Veterans taking care of veterans
The Washington Post carries a moving report this morning about a group of older veterans of past wars who have taken it upon themselves to greet American soldiers coming home on leave from Iraq through Baltimore-Washington International airport. Many of these men are Vietnam veterans who want to ensure that these men face a better homecoming than they received.
"Welcome back. Good to have you home," said Bill Self, a Vietnam War veteran, extending his hand to each soldier arriving for two weeks of home leave. Beyond him, a second line of veterans was waiting with telephone cards allowing the soldiers to make free calls across the country.
Older veterans who hold their own
The Los Angeles Times has an interesting article this morning about a couple of older gentlemen serving in the Florida Army National Guard -- and now fighting in Iraq. Warfare has historically been a young man's endeavor, largely for the physical toll it exacts on the body. But these men are proving that they're tough enough to hang in there.
A few days ago, resting on his cot after a nighttime patrol in the brutal streets of Baghdad, [Sgt. James] Flores, a grandfather, sat bolt upright: "It hit me all of a sudden. I said, 'Oh, Lord, I turn 50 tomorrow.' I never thought in my lifetime that I'd be at war at that age."
Veterans Day message from Intel Dump
Veterans Day is always a solemn occasion to reflect on and to show our gratitude for those who have fought to preserve the freedoms all Americans enjoy today.
This day was designated as "Armistice Day" after World War I to pay tribute to those who served in that war. This holiday was originally commemorated on the 11th hour of the 11th day of the 11th month to mark the anniversary of the agreement which ended WWI. In 1954, the day's significance was expanded by Congress to honor all the soldiers, sailors, airmen, Marines, coast guardsmen, and merchant marines who have worn our Nation's uniform. By pausing to remember, we recognize the many diverse and difficult circumstances that our Veterans have faced. However, no matter what the time or the uniform, they are united by the same ideals: life and liberty, peace and prosperity, service and sacrifice.
There are currently more than 25 million living American veterans, many of whom put their lives on the line to preserve our freedoms. Through each of these challenges, the members of the Army, Navy, Air Force, Marines, and Coast Guard have protected our country and liberated millions of people around the world from the threats of tyranny and terror.
On the observance of Veterans Day in 1954, President Dwight D. Eisenhower called on all citizens to not only remember "the sacrifices of all those who fought so valiantly..." but also to rededicate themselves "to the task of promoting an enduring peace...." Today, almost 50 years later, we remember the dedication of our veterans, and resolve ourselves to upholding their legacy of justice, liberty, and opportunity for all.
I ask that you set aside a moment this Veterans Day to remember the service and sacrifices of American veterans, past and present.
(I cobbled this message together from past messages sent by the President and JCS Chairman to send to the UCLA law school student body and faculty.)
Monday, November 10, 2003
Supreme Court grants cert to Gitmo cases
The AP reports that the U.S. Supreme Court has agreed to hear a pair of cases arising from America's detention of more than 600 men at Guantanamo Bay, Cuba. They are currently held there as "unlawful enemy combatants", just outside the reach of the 3rd Geneva Convention, but with most of the humanitarian protections found in that document. The narrow question presented by these appeals is whether U.S. courts have jurisdiction to hear the appeals from these men.
The appeals came from British, Australian and Kuwaiti citizens held with more than 600 others suspected of being Taliban or al-Qaida foot soldiers. The court combined the appeals and will hear the consolidated case sometime next year.Analysis: As with nearly every Supreme Court case, the real issue is whether the Court will decide this case narrowly or broadly. If the court rules narrowly on the jurisdictional question alone, that may not necessarily derail the Bush Administration's legal strategy for dealing with detainees in the war on terrorism. Moreover, such a narrow legal ruling might not affect the detentions of U.S. citizens at U.S. military prisons, such as Jose Padilla. However, if the Court decides to issue a sweeping decision (a'la Lawrence v. Texas) addressing all aspects of the war on terrorism, then I think this could be significant. In this decision, the Court will have the opportunity to hear and address many aspects of the war on terrorism, and the larger question of balancing liberty with security. If the Court takes the opportunity to address those larger questions, then this could really be a monumental decision.
What are the odds that they'll do that? I don't know. But my hunch is that the Court will seize this opportunity to issue a decision larger than the facts of this case. In a Q&A session I attended last year at the Reagan Library, Justice Anthony Kennedy hinted that he felt such issues would ultimately be decided by his court. Also, there appears to be a circuit split growing between the 2nd Circuit and 4th Circuit on the issues of unlawful combatants and access to counsel, among other issues. The law in this area is somewhat messy and outdated, and the Court may want to clarify its precedent for lower circuits. In the end, I still can only make an educated guess, but I think the court will issue a broad holding in this case when they ultimately decide it.
Will Justice Rehnquist have to recuse himself from this vote? I'm not all that clear about the rules of judicial conduct as they apply to justices of the Supreme Court. But there is an argument to be made that the conservative Chief Justice might have to step down for this case because of his past writings on civil liberties in wartime. Justice Rehquist is the recent author of All the Liberties But One: Civil Liberties in Wartime. To some extent, I think his research and writing in this area reveals some bias on the issue, and his bias appears to be against the petition in this case. If Justice Scalia recused himself for his remarks on religion and the state, then I think there's at least an argument to be made that Justice Rehnquist should recuse himself on this case. We'll see.
Update I: Robert Greenberger and Jess Bravin of the Wall Street Journal (subscription required) correct one of my statements about the breadth of this decision to grant cert. The Supreme Court will only look at the narrower question of whether the courts have jurisdiction to hear petitions from prisoners detained at Guantanamo Bay. The Court's order limits the case to "[w]hether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba."
In accepting the case, the Supreme Court limited its review to whether federal courts have any jurisdiction over Guantanamo, rather than some of the broader legal issues raised by the detentions. Mr. Ratner said the court may "look at this as a Guantanamo vs. Bagram question," referring to the Afghan military base where the U.S. also detains and interrogates suspected terrorists.So...we're not likely to get a major decision about the balance between liberty and security, or something which might apply to the Padilla and Hamdi cases. However, this decision will certainly impact the American decision to detain men at Guantanamo Bay. Suffice to say, it would be a major complication for the administration if prisoners there were allowed to bring suit in federal court to challenge their detention. My prediction echoes that made by Eugene Volokh -- the Court will likely follow Johnson v. Eisentrager and hold that enemy combatants outside the United States do not have the right to petition for habeas corpus in U.S. courts. But this case could easily go another way.
Update II: The Washington Post's article on the Supreme Court's decision to hear this case has a couple of interesting links on the right side of the page:
Military Commissions, and the Findlaw.Com repository of documents from the war on terrorism. The latter is probably the best repository for primary legal documents on terrorism.
Thursday, November 06, 2003
Admin note: I am in the middle of grading undergraduate exams this week and several other projects, so I'll be away from my news feed for most of the day. Please check back infrequently over the next few days, and come back for regular analysis & commentary on Veterans Day, Nov. 11. Thanks.
Pentagon calls up 43,000 reservists for duty in Iraq
Active-duty, Marine contingents also alerted for deployment
The New York Times reports this morning on an alert order issued by the Pentagon yesterday to reserve and National Guard units around the country, letting them know they will be going to Iraq. 397 units in nearly every state are affected by this order, which includes both combat troops (such as infantry and armor) and support units (such as logistics and communications).
Pentagon planners have sought to limit additional call-ups of National Guard and Reserve forces beyond combat units identified months ago, but ultimately realized that, at the very least, logistics units would be required in the next rotation.Analysis: This is a large chunk of the reserve force. Here in California, this deployment is tapping into a unit which has not deployed for combat since the Korean War. When you add up Operation Noble Eagle (homeland security) deployments, Balkans deployments, and other missions, you soon see that we have run through a very significant portion of the reserve force. What's left is basically a hollow shell of a force. Moreover, each deployment since Sept. 11 has tended to decimate the units called up. After being called away from their jobs and families, thousands of reservists have decided not to re-up for more time in the reserves. And the cycle goes on and on.
America's reserve force is a precious resource. It has done yeoman's work since the end of the Cold War in supporting the active force and in deploying itself for missions like Bosnia and Kosovo. But if we continue down this road, we will absolutely destroy the reserve force and render it mission incapable. I'm not sure the mission in Iraq is worth that price. However, I'm not sure what the answer is. We're committed to the Iraq mission now, and short of conscription, there's no other way to make ends meet than with reserve forces. But we should start developing mitigation plans to ensure that in 3-5 years, we'll still have a reserve force capable of doing something. Whether that means additional educational benefits or VA benefits for reservists, or additional reenlistment bonuses, we should probably do it.
Update: Even the Pentagon acknowledges the "challenges" in managing our reserve forces for the Iraq mission. "Challenges" is a great euphemism. It's a way to say something is incredibly difficult while still sounding positive about the endeavor. That's the kind of "can do" attitude I'm used to seeing in the military officer corps, and I'm not surprised to see it in the upper ranks of the Pentagon. However, I would add that some challenges are more challenging than others, and that this issue (management of reserve forces) will be a really tough nut to crack. A positive attitude can help, but it will only do so much.
Wednesday, November 05, 2003
NYT: Iraq tried last-minute diplomatic effort to avoid war
Update: Is this story really what it appears -- or is it more smoke & mirrors?
James Risen has a startling report about Iraqi efforts to engage in back-channel diplomacy via influential DoD adviser Richard Perle to avoid war. The lengthy article describes the networks used to make the contacts, what was said, and how the U.S. responded to the Iraqi requests for more diplomacy.
WASHINGTON, Nov. 5 — As American soldiers massed on the Iraqi border in March and diplomats argued about war, an influential adviser to the Pentagon received a secret message from a Lebanese-American businessman: Saddam Hussein wanted to make a deal.Analysis: I think there are two basic ways to look at this. Either the Iraqis were trying to delay the conflict via diplomacy, in order to shape the outcome by engaging in more defensive preparation. Or the U.S. was trying to deny the Iraqis that opportunity by spurning diplomacy after it had committed to war. My gut tells me that these are not mutually exclusive, and that both interpretations are probably correct. This may all be a moot point. But my gut also tells me that a little bit more time would have helped us now in Phase IV, by allowing us to put more troops on the ground and lay the groundwork more for the post-war phase of the operation.
Update: Josh Marshall is more skeptical than I am about this story, given a line that's buried far down in the story about the leaker's motivation for speaking with the Times. Here's the all-important paragraph:
Senior Pentagon officials said Mr. Durnan relayed messages he received from Mr. Maloof to the appropriate officials at the Pentagon, but they said that Mr. Durnan never discussed the Hage channel to the Iraqis with Mr. Wolfowitz. (In May, Mr. Maloof, who has lost his security clearances, was placed on paid administrative leave by the Pentagon, for reasons unrelated to the contacts with Mr. Hage.) [emphasis added]Josh is very savvy about these things. (I consider him to be one of the smarter reporters inside the Beltway.) Here's his analysis of this story and how it "leaked" to the press:
Let's say I'm a career defense bureaucrat struggling to get my security clearances restored because it's very hard for me to be a defense bureaucrat without them. And let's say one of the reasons I can't get them restored is because of some unauthorized contacts I had with a Lebanese-American businessman under investigation for running guns to Liberia. And let's further add to the mix that my whole mess with the security clearances is part of a larger struggle between different factions in the national intelligence bureaucracy. Oh, and one last thing: let's say I'm a protégé of Richard Perle.If true, this certainly diminishes both the newsworthiness and veracity of this story. Unfortunately, like the recent Rumsfeld memo that was leaked to the public, it's getting hard to see through all the smoke and mirrors to what the truth actually is. I'd like to take newspapers like the New York Times at something close to face value, because I rely on accurate news from prestigious sources for information that shapes my view of the world. Unfortunately, this incident and others makes it clear that I can't afford to rely on any one source of news -- and indeed, that I do so at my own peril.
1st Armored learns to act like CIA-police hybrid in Iraq
"Everyone is an intelligence officer . . . everyone you come in contact with [has] intelligence value"
Vernon Loeb has an interesting article in today's Washington Post on the exploits of the 2nd Brigade, 1st Armored Division, and its efforts to develop intelligence sources in the neighborhood of Baghdad. The tactics look less like those of an armored division and more like those of an intelligence agency, or a very street-savvy police department.
When the 4-27 Field Artillery started patrolling parts of north Baghdad in late May and June -- McKiernan did not take command until July -- its 535 soldiers found themselves under almost constant attack.Analysis: The article goes on to say that the 2nd Brigade's commander learned these tactics, in part, from his experience teaching at the British Military Academy at Sandhurst. These methods reflect hard-won British experience in Northern Ireland, which was built on centuries of colonial and constabulary experience. What's interesting is to see how the U.S. melds this experience with the American army's unique technological edge and experience in the Balkans. The result seems to be better operations that are driven by intelligence. If every unit in Iraq does this kind of thing, they should soon be able to penetrate the guerilla cells responsible for recent attacks on American forces. The key to penetrating those cells is developing HUMINT capabilities -- mostly Iraqis -- who are willing to work for us instead of the other side. Doing so will take a lot of work and a long time, and it won't be something the media can cover. But it will be effective in the long run. This kind of intelligence is absolutely critical for fighting a 4th Generation War, and we will lose without it.
Allies' concerns delay military tribunals
After a report last week that military tribunals were "imminent," the New York Daily News reports today that several American allies have expressed political concerns over the process which may affect their citizens.
Britain, Australia, Pakistan, Kuwait, Egypt and Yemen want their people being held in Camp Delta at the U.S. base in Cuba sent home for trial or released.Analysis: It's more than keeping Pakistan happy, although that's part of it. Each of these countries has provided some aid in our war on terrorism, whether it's troops for Afghanistan or intelligence information. I imagine that if push comes to shove, and the administration is forced to decide between tribunals and our allies, they'll choose our allies. But we'll see.
Saturday, November 01, 2003
A local version of Total Information Awareness?
Noah Shachtman reports this weekend that the ACLU has produced a new report on the "MATRIX" program, a state-run information gathering and analysis system that's eerily similar to the Defense Department's Total Information Awareness (TIA) program that was torpedoed this year over civil liberties concerns. (Long-time Intel Dump readers may remember my earlier report on this program) This program's future is somewhat in doubt, as several state and local governments have pulled out of the MATRIX program because of civil liberties concerns. I'll continue to follow this story to see how it develops.
Update: Some academics up at MIT have come up with a program called "Government Information Awareness", or the "citizen's TIA". One of my readers describes it as "a public, peer to peer information exchange system, which allows anyone to post information on politicians and government officials." Very interesting.
Failing to plan = planning to fail
That's the lesson offered by this New York Times Sunday Magazine article, which bears the not-too-subtle title "Blueprint for a Mess". (Note to NYT eds: I'm sure it was tough not to use 'quagmire' or 'slog' in this headline) David Rieff looks at an issue that has been looked at by many authors since the end of Gulf War II -- how planning for Phase IV (the post-war phase of the operation) could have gone so wrong. Even I've taken a whack at this issue in an article for the Washington Monthly. Mr. Rieff's conclusion is that several main factors contributed to the general state of affairs today in Iraq:
1. Getting In Too Deep With ChalabiAnalysis: This NYT article does a great job of putting together the pieces which have already been reported by other newspapers, including the New York Times itself and the Los Angeles Times. It's the kind of piece that future generations of students and scholars will use to understand the difficulties America faced in post-war Iraq. Unfortunately, this piece fails to ask and answer the crucial question: WHY was American planning for Phase IV so defective? The question of why is as important as the question of how, which this article answers ably. We know now that our planning for Phase IV was defective, and we can figure out the ways in which that planning effort failed. What we do not know is why senior leaders in the White House and Pentagon failed to heed the advice of their staffs, and why they charged forward with a plan that was seemingly doomed to failure.
On campaign contributions and government contracts
Dan Drezner has a good discussion of the recent brouhaha over large political contributions made by the top U.S. firms doing business in Iraq. The story broke after the Center for Public Integrity released a report essentially saying that the U.S. awarded contracts to firms that were -- coincidentally -- top donors to political campaigns. I think Prof. Drezner does a good job of putting the study and its conclusions into proper perspective. Likewise, I don't think this study is the damning indictment of war profiteering that some have made it out to be. Every large firm donates money to campaigns, and it doesn't surprise me that large government contractors are giving money to men and women running for top government positions. Moreover, I'd bet that even the losers in the Iraq contracting process gave money to campaigns. In the absence of any specific evidence of cronyism or corruption, I'm inclined to think this is much ado about nothing.
Friday, October 31, 2003
Wes Clark on America's empire
The November issue of the Washington Monthly features this article from retired-Gen. Wesley K. Clark, who is trying to posture himself as an alternative to the current foreign policy being pursued by the Bush White House. The article is essentially an excerpt from Clark's new book, and it offers some insight into the foreign policy that Clark would adopt if he moved into 1600 Penn. Ave.
We need to see ourselves and the world around us in sharp relief--and use that vision to inform better our policies. Simply put, the United States needs a new strategy for the 21st century--a broader, more comprehensive, and less unilateralist approach abroad, coupled with greater attention to a sound economy at home, and sensible long-range policies. The Bush administration's strategy of preemption, published in the 2002 National Security Strategy, was focused against Iraq. At home, the formula of the supply-siders--tax cuts for the wealthy to feed trickle-down economics--has about run its course. It is time for America to return to the basic concepts that ensured its unprecedented prosperity and security and to adapt from these a new strategy that can better serve our needs today.Good words; hard to implement. I like Wes Clark's view of the world, and his view of where America should fit into the world. I think that we ought to enlist other nations and international organizations in the fight against Al Qaeda and other terror networks, because the only way to defeat a terror network is to build a stronger network of our own. However, I also recognize that saying these things and doing them are two different things. It will be exceedingly hard for President Clark to implement his vision -- harder even that it would be if he were General Clark again. A lot of fence mending must be done before we can start down this multilateralist road. If Wes Clark wants to make this vision seem realistic, I think he has to articulate the "how" instead of just the "what" for his view of the world and America's place in it.
Lawmakers push for better body armor -- and the Pentagon responds
Lisa Burgess reports in Stars & Stripes today that 33 members of Congress have sent a letter to the House Appropriations Committee requesting that the Pentagon be directed to buy better body armor and other gear for soldiers deployed to Iraq and Afghanistan.
On Wednesday, 33 House members, led by Rep. Corrine Brown, D-Fla., sent House appropriators a letter that emphasized the need to supply all deployed troops with the Defense Department’s new Interceptor flak vests, as well as provide adequate immunizations, drinking water and even sundries such as toothpaste.In response to this story, and to widespread criticism over the Interceptor body vest procurement problem, the Pentagon released a statement today that it was doing all it could to get the body armor to Iraq as quickly as possible.
The Army and Marines are rushing to get enough body armor into Iraq and Afghanistan by December for everyone who needs it, as fast as it comes off the assembly line.Analysis What we have here is a lot of "too little, too late" on both sides. The push by the 33 Democratic legislators comes as Congress has given its blessing to the President's $87 billion package for Iraq and Afghanistan, and also near the end of the FY2004 defense appropriations process. In other words, the push may be too late. I have learned that at least one member of Congress tried to amend the President's $87 billion request in the House to add funding for body armor, but that rider was rejected on procedural grounds. At this point, I'm not sure what can be done, given the fact that Congress has signed off on this bill and the President seems sure to sign it.
That said, I'm not sure what else can be done. The Pentagon jump-started the procurement of this body armor a few months ago, and there appears to be no feasible way at this point to make the production lines move any faster. At this point, December 2003 may be the best that our military-industrial complex can do in terms of a delivery date for these pieces of equipment, and soldiers couldn't even buy these items faster if they wanted to with a personal credit card.
What's left to be done? I think we're kidding ourselves if we think that Iraq will be the last battle fought by our military for some time, or that we will leave Iraq anytime soon. The Interceptor body armor should be fielded to every American soldier and Marine -- active and reserve -- as soon as possible. We ought to make the fielding of critical soldier equipment a priority. It was tragic to send men and women into combat without this gear this time. We will be derelict if we do it again.
Update: National Journal's Congress AM Daily reports that 103 members of Congress have called on the House Armed Services Commitee chairman to hold hearings on the Pentagon's failure to field Interceptor body armor before the war in Iraq.
In the letter to Hunter, Rep. Ted Strickland (D-Ohio) and the others noted service members' complaints that only some soldiers serving in Iraq have been issued the highest quality "Interceptor" body armor -- Kevlar bulletproof vests with removable ceramic inserts. Other soldiers have been killed when Vietnam-era "flak jackets" failed to stop enemy bullets.
Federal judges harder to predict on sentencing than lawmakers say
Jess Bravin and Gary Fields reported in yesterday's Wall Street Journal (subscription required) about a really interesting draft study by the General Accounting Office on sentencing decisions by federal judges. The study belies much recent criticism of federal judges -- that they are too lenient across the board; that they always "downwardly depart" from the sentencing guidelines; that they bend the law where they think the facts warrant it. This new GAO study punctures at least one of those critiques, and hints at a much more complex picture of the federal bench.
Government researchers did find wide disparities in sentencing across the country's 12 regional judicial circuits. In drug cases, for example, district judges in San Francisco's Ninth Circuit were 19 times as likely to mete out sentences below the guidelines of the U.S. Sentencing Commission -- to make what are called "downward departures" -- as those in the Fourth Circuit, based in Richmond, Va., an unpublished draft study by the General Accounting Office shows.Analysis: It's funny how numbers can go against conventional wisdom sometimes. A few outspoken judges have created the perception that all judges are willing to bend the rules for defendants -- and that appears to not be the case. The response to this perception has been quite Draconian. The Justice Department now wants to track all judges who downwardly depart from the sentencing guidelines. The federal judiciary has had to deal with this issue while trying to get more resources with which to hear cases and clear its backlog. Hopefully this data makes the debate a little bit more intelligent -- and honest.
Thursday, October 30, 2003
Start of military tribunals said to be 'imminent'
Col. Frederic L. Borch III, the prosecutor appointed by the Pentagon to lead the military tribunal effort, announced today to an American Bar Association meeting that the start of these trials was "imminent, soon". It has been nearly 2 years since President Bush authorized these tribunals in his 13 Nov 01 executive order, and some have predicted that the trials would never actually happen. Today's speech belies that prediction, and indicates that these proceedings may be just around the corner.
"I think it's safe to say that our start is imminent, soon," said Col. Frederic L. Borch III, who oversees nine prosecutors in a Pentagon office set up to handle the upcoming trials. Borch, speaking to an American Bar Association gathering, would not be more specific.Analysis: Why start now? I think the administration wants to fight the perception that the men detained at Guantanamo Bay are languishing there in perpetuity -- with no legal process whatsoever. These military tribunals represent a relatively low risk way to give the detainees some legal process and dispute that perception. Notwithstanding the procedural criticisms of these tribunals, they will represent more legal process than the detainees have gotten so far. The White House may be able to spin this as a magnanimous act -- something that goes above the requirements of the Geneva Convention.
To use a bad legal pun, I think the jury's still out on the tribunals. I've read the procedural rules created by the Pentagon and compared them to both the Manual for Courts Martial and the Federal Rules of Criminal Procedure. The differences are major, but the tribunals still have the potential to be fair proceedings for the men detained at Guantanamo. I'm not convinced yet that the tribunals will be the kangaroo courts that some have made them out to be. I guess I have faith in the career military lawyers who will staff the tribunals and sit as members of the jury, and their ability to do the right thing. Maybe that's overly optimistic. But at least we're giving these detainees some legal process. It remains to be seen how just that process will be.
Two U.S. soldiers killed in attack on M1A2 tank
Enemy tactics appear very similar to those in Israeli-Palestine conflict
The AP reports on a roadside bomb that struck and seriously disabled one of the Army's M1A2 tanks from the 3rd Battalion, 67th Armored Regiment, 4th Infantry Division -- killing two soldiers. The attack was the first to successfully knock out an M1 since the end of major combat operations on May 1, and only the third destructive hit on an M1 during the war.
The Abrams tank was disabled when it was struck by a land mine or a roadside bomb Tuesday night during a patrol near Balad, 45 miles north of Baghdad, said Maj. Josslyn Aberle, a spokeswoman for the 4th Infantry Division. A third crewman was evacuated to a U.S. hospital in Germany, she said.Analysis: The M1A2 weighs more than 70 tons, and is the most advanced and heavily armored combat vehicle in history. They are considered virtually impregnable to attack from anything but another tank or sophisticated anti-tank missile (like the Hellfire). I imagine the Army is extremely concerned right now about this new development, because the majority of its vehicles in Iraq are not as well protected as the M1 tank or M2/M3 Bradley fighting vehicle. Indeed, the Army is currently deploying its new "Stryker" brigade to Iraq, composed of lightly-armored wheeled vehicles which were partially developed with an eye towards peacekeeping operations. If the Iraqi guerillas now have a way to take out the M1 tank, that's a very serious development.
There's another interesting angle here that was noted by an officer who participates in a military list-serv I belong to. That's the similarity between this M1 hit and the 15 Oct 03 attack which killed three Americans in the Gaza Strip. In that attack, a huge bomb exploded in the roadway under a U.S. diplomatic convoy of heavily armed and armored vehicles. Compare the TTPs used in Gaza to those used in Iraq:
The attack occurred at about 10:15 a.m. (4:15 a.m. EDT) Wednesday, five hours after the United States vetoed a U.N. Security Council resolution that would have condemned Israel for building a controversial fence around theThis is pure speculation, but I think these two sets of tactics are pretty similar. The U.S. suspects right now that foreign elements are behind many of the attacks in Iraq, and that they are having a significant influence on domestic Iraqi guerillas. Even if they're not actually conducting the attacks, I think it's very likely these foreigners are providing training and expertise to the Iraqis in the art of urban combat and insurgency. To some extent, these foreign guerillas may also be passing along their doctrine from places like the Gaza Strip and West Bank, where guerillas and terrorists have learned how to defeat sophisticated Israeli security schemes and achieve deadly results. This is a very dangerous development. More to follow.
Embedded report from the 3rd ACR
Nir Rosen of the Asia Times is one of the last reporters to remain 'embedded' with a unit in Iraq. Asia Times publishes this series from Rosen which offers some vivid reports from the field with the soldiers of the 3rd Armored Cavalry Regiment. Overall, I think the series paints a pretty good picture of what's going on over there with this unit. Here's an excerpt from the first article of the series:
AL-QAIM, western Iraq - "This is the wild wild west," says Captain Chris Alfeiri, holding a fly swatter while relaxing in between missions. A 30-year-old native of Boston, Alfeiri is one of about 1,000 soldiers from the 1st Squadron of the 3rd Armored Cavalry Regiment (ACR), based in Fort Carson of Colorado Springs, Colorado, and currently stationed in al-Qaim, at the western edge of Anbar province, bordering on Syria.
Wednesday, October 29, 2003
The myth of the Republican military voting bloc
Benjamin Wallace-Wells deconstructs this myth in next month's issue of the Washington Monthly, and argues that the GOP ought not take military votes for granted in 2004. This well-reported and written story chronicles the recent political history of the military, from George C. Marshall to the present day, and paints the picture today of a military that's increasingly disenchanted with the current White House.
The effect of all of this, says Andrew Bacevich, a retired Army colonel and professor of political science at Boston University, is that "the soldier vote and the pro-military vote are in play." In 2004, says Feaver, the military sociologist at Duke, "there is the potential for these forces which have always pushed towards the Republicans to be neutralized, or even pushing towards the Democrats."Analysis: I've never thought the military really lived up to its stereotype when it came to politics. The conventional wisdom is that America's military is one of the last bastions of American conservatism. I do think that America's military officer corps is somewhat more conservative than society at large, but I think that it's largely become a professional class that is too diverse to effectively be pigeonholed that way. Moreover, the enlisted corps of the military is most certainly not conservative -- it's far too diverse in race and socio-economic terms. On balance, I'd say that the military leans slightly to the right of center, but it's no John Birch society. Military voters could vote for John McCain or George Bush -- or they could vote for Wes Clark or Bill Clinton.
(Quick personal vignette: I went into the military as a conservative and came out as a moderate/liberal. I attribute this change to the experience of living and working with such a diverse group of soldiers, especially the ones I was privileged to lead. Most of my enlisted soldiers came from working-class backgrounds, and their perspective was one that I had nto been exposed to while growing up in Southern California. Charlie Moskos and others have written that one of the best things about the draft was their exposure to other American kids, and social interaction and educatin that flowed from that. I think the same dynamic occurs in an all-volunteer force, except that only the volunteers are lucky enough to take advantage of it.)
In 2004, there are lots of issues in play which matter to national security voters. I divide these issues into two main categories:
1. Issues of national security per se, such as how to best fight the war on terrorism.
2. Issues which affect national security voters personally, such as how to equip the military and whether to give them a pay raise or certain benefits.
The Bush White House is vulnerable on both sets of military issues. The criticisms for the first set of issues are widely known. It will not be hard for the eventual Democratic nominee to make an argument against the White House on Iraq, on progress against terrorism, or any other front. The truth is that this is a very difficult war, and that smart people can disagree both over our progress and our direction in this war. That leaves a lot of room for disagreement. My hope is that the Democratic candidate offers a positive vision instead of merely attacking the President on this issue.
The second set of issues -- those which affect military voters personally -- will also be viable issues in the 2004 election. Some of these will flow directly from Iraq, and will include criticism over the administration's decision to put Americans in harm's way there in the first place, as well as criticism over specific problems in Iraq like the failure to equip all soldiers with the latest body armor. So too will the overstretching of America's reserves, which will probably result in a large exodus of reservists as they redeploy in 2004 from a year in Iraq. The Democrats will also hammer the White House over the "concurrent receipt" issue which affects veterans benefits, as well as military pay issues. The recent incident at Fort Stewart may also provide grist for the Democratic machine. All of these issues can (and probably will) be used by the Democrats to pull away military voters to the Democratic party.
Who stands to gain the most here? That should be obvious -- Wesley K. Clark. Of all the Democratic candidates, Wes Clark stands in a league all his own for his ability to exploit these issues. Moreover, I think he even stands above President Bush for his personal credibility on these issues. John Kerry may also be able to run with these issues, but not as well as Mr. Clark. It's still too early to handicap the Democratic race, and I'd be a fool to bet now on Dean or Clark or Kerry. Of course, lots can happen between now and Nov. 2004; these issues may not have the same resonance then as they do now. More to follow...
Army announces plans to retain, expand Peacekeeping Institute
After almost eliminating its Peacekeeping Institute at the Army War College several months ago, the Army announced today that it would retain and expand the center, which has become something of an policy-oriented think tank within the Army on operations other than war. The decision to close came as part of a larger headquarters realignment proposal for the Army, but was quickly criticized as short-sighted by many inside and outside the Army. In hindsight, the move appears particularly daft, given the Army's extensive commitment to Operation Iraqi Freedom.
The institute will be renamed the U.S. Army Peacekeeping and Stability Operations Institute (PKSOI) to encompass the revised charter.Analysis: This is good news for at least two reasons. First, this institute does a great job of collecting knowledge on peacekeeping and educating the military about that knowledge. In a profession where mistakes cost lives, the effort to spread 'lessons learned' from previous missions is incredibly important, and the PKI did a good job of this. Second, this is good news because it shows that the Defense Department is willing to listen to criticism and react to it. I'm sure there were some egos bruised in the process, but at the end of the day, the Pentagon came around and kept the PKI open. It's amazing what can get done when you emphasize solving problems over winning bureaucratic battles.
A bloody view of the war
The Wall Street Journal (subscription required) has a superb article on its front page today by Yaroslav Trofimov on the 21st Combat Support Hospital, and how that organization's personnel see the war. The Army's medical community has historically been less hooah about combat operations. Medical personnel tend to see themselves as healers first and warriors second, and they are the ones who must deal with the human cost of war. This article tells their story, and shares their perspective of the war.
While attention focuses on the number of American soldiers killed in Iraq -- 115 by enemy fire since Mr. Bush announced the end of major combat on May 1 -- the military doesn't generally publicize the more-frequent incidents in which soldiers are wounded. According to a tally kept by the U.S. Central Command, as of 7 p.m. on Oct. 27, the U.S. military had sustained a total of 1,737 nonlethal casualties from hostile action in Iraq, including 1,186 since May 1.Analysis: I have two reactions to this story, and they're at odds with each other. The first is to wonder whether reporting on casualties is really a good idea. Such reporting tends to demoralize the American public, and to embolden our adversaries as a result. Also, an emphasis on casualty reporting translates through the democratic process into public pressure to reduce casualties, which translates through the chain of command to pressure on commanders to minimize risk in their operations. That pressure reduces operational effectiveness, because commanders alter their plans to maximize force protection instead of mission accomplishment. I think that's a very dangerous thing, and that ultimately, it can lead to mission failure.
On the other hand, I think it's important to recognize the cost of war and to weight that cost against our raison d'etre. This cost has been quite high. As a vignette, a friend of mine told me that she has sent replacement uniforms to her physician friends in the 4th Infantry Division to replace blood-soaked uniforms that they could no longer wear. I can't even imagine such carnage, and I've worked in a Los Angeles-area emergency room before. These medical personnel see the cost every day, and I think they bear a difficult burden in explaning the "why" behind the injuries to soldiers when they come out of anesthesia. I support the mission in Iraq, however, I think I'd be hard-pressed to explain that every day to wounded soldiers the way these doctors have to.
Army battalion commander faces assault charges in Iraq
The Washington Times reports this morning on an interesting legal vignette from the 4th Infantry Division, where LTC Allen B. West stands charged of assaulting an Iraqi prisoner in order to gain information in connection with an attack on his unit. These charges are remarkable because LTC West was an artillery battalion commander at the time of the incident. It's rare that a senior officer would take such a direct role in prisoner interrogation, and that the Army would prosecute such a senior officer. But in this case, the 4th Infantry Division's Staff Judge Advocate has recommended that LTC West either be allowed to "RILO" (Resign In Lieu Of court martial) or be court-martialed for his conduct.
An informant reported that there was an assassination plot against Col. West, an artillery officer working with the local governing council in Saba al Boor. On Aug. 16, guerrillas attacked members of the colonel's unit who were on their way to Saba al Boor.Analysis: This story is interesting on a lot of levels. First, there's the question of effectiveness, and whether LTC West's use of his M9 pistol was effective in interrogating this prisoner. It appers that it was. Second, I think we have to balance that short-term effectiveness against any long-term consequences that flow from these kinds of interrogation tactics. In this case, the firing of two 9mm rounds near the prisoner was clearly coercion in a psychological sense, but I'm not sure whether it really crossed the line into torture. Remember, this is combat, not police work, and the rules are different. I'm not sure whether this incident will really have the kind of long-term consequences the Army is concerned about. Indeed, this kind of interrogation may be necessary to get information that can save American and Iraqi lives.
On another level, this story is interesting because it reveals American attitudes towards misconduct in the ranks. Generally speaking, the Army takes a dim view of this stuff, whether it's done by an Army MP private or an artillery colonel. Indeed, the colonel will usually be treated more harshly, both because of his experience and the command responsibility he bears. Truly, the buck stops in this case with LTC West, and he will be held responsible for anything done in his command. If one of his lieutenants had done this, LTC West probably wouldn't be facing charges now. But he surely would face some administrative action -- possibly the end of his career -- for the incident.
Finally, this story is interesting because it reveals the kind of stress our soldiers and commanders are under in Iraq. I bet that if you asked LTC West last year whether he'd do this, he'd have responded "no". Senior officers in the American Army tend to be very well educated about the laws of war, at least in comparison to our NATO allies and our enemies. If you gave him a hypothetical like this, he probably would have said he'd call in the brigade's counter-intel/HUMINT teams to do the interrogation. But the exigencies of the situation often make people do things they wouldn't ordinarily do. Clearly, LTC West and his unit are under a great deal of stress right now, or else this incident would not have happened.
I'm conflicted about whether these charges are justified or not. LTC West has the ultimate responsibility as commander to protect his unit, and a little bit of "smacky face" (to borrow Jess Bravin's quote from the WSJ) may be justified in this kind of situation. The line between coercion and torture is a very difficult one to draw, and I'm not sure this was the wrong thing to do in this situation. If this case goes to a court martial, LTC West may be able to make that case to a military jury of his peers.
Coda: Want to know how the Washington Times got this story? Easy. Guy Taylor, the writer, was embedded with 4th Infantry Division for some time during their ramp-up at Fort Hood and their subsequent deployment to Iraq. I imagine he made a number of contacts during that time, and built relationships among the officers in the division. I think this will be an unintended payoff of the embedding program for both the media and the public over the next several years. These bonds will probably continue over the years, especially as journalists cultivate relationships with officers on their way up.