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Monday, December 08, 2003
An inauspicious start to the trial of Captain Yee

The New York Times reports tonight on the start of Art. 32 proceedings against CPT James Yee, the Muslim chaplain on duty at Guantanamo who was initially accused of capital espionage, only to see those charges reduced to mishandling of classified material, adultery and storage of porn on his Army laptop. Before the trial started, the prosecution possibly mishandled classified materials themselves, handing over supposedly classified materials to Yee's civilian attorney who's still waiting for his clearance. Now, the Art. 32 hearing has gotten underway, and a military judge will decide at the end of this hearing whether to recommend court martial or not for CPT Yee.
In a spare and harshly lit military courtroom at this Army base, prosecutors began their case by calling the naval officer, Lt. Karyn Wallace, who said she had been a neighbor of Captain Yee's when they lived in the bachelor officer quarters at the Guant�namo Bay naval base in Cuba.

Under precise questioning from a prosecutor and the military judge, Lt. Wallace recounted how she and Captain Yee, a Muslim chaplain for the Army, went from being buddies to having an intimate relationship in the late summer, both at Guant�namo and in Orlando, Fla., where they took leave together.

* * *
Captain Yee was arrested on Sept. 10 at the Jacksonville Naval Air Station in Florida on suspicion of espionage after customs inspectors said his luggage contained papers that they thought were suspicious and possibly contained classified information.

Captain Yee was charged with an offense far less serious than espionage � mishandling classified information � and was held in solitary confinement in a naval brig for three months while the military conducted an investigation. When that inquiry concluded last month and he was released, the military's only new charges involved keeping pornography on his government computer and having an extramarital affair, both violations of the military code of justice.

The military does not contend that either of those charges are related to any security breaches but that they were violations discovered in the course of the investigation. But Captain Yee's civilian lawyer, Eugene R. Fidell, has said the charges were vindictively added as part of an effort to cover up the military's mistake and initial overreaction.
Analysis: There's something to be said for the defense in this case. First off, it looks like the initial reactions (including mine) to this case were wildly off the mark, inasmuch as they suspected Yee of actually aiding the enemy and committing espionage. Those are very serious charges, and they appear to have been groundless in Yee's case. (The jury's still out in the other Gitmo cases, but I don't think they will reveal much either.) Second, I think the defense has it right when they say the prosecution is going over Yee for the same mistake it made itself. Mishandling classified materials is no laughing matter, but lots of people screw that up in the military all the time and they usually get an administrative slap on the wrist. It doesn't help that the prosecution screwed up something that is so closely related to the charge the defendant faces here.

Similarly, storing porn on a government computer is usually dealt with administratively. Adultery is a serious charge, but it's also dealt with administratively in a lot of cases -- either informally or through career-ending letters of reprimand and non-judicial punishment. Commanders generally use their discretion to deal with such offenses at their level.

However, the use of those measures for these charges is discretionary -- not mandatory. In this case, the Army appears to be throwing the book at CPT Yee. Why? For at least three reasons. First, he's a commissioned officer of the United States Army, and officers are supposed to be held to a higher standard of conduct than enlisted personnel. CPT Yee doesn't have the excuse of being a direct commissioned chaplain with little military experience; he's a West Point graduate and Gulf War I veteran. He should know better. Second, CPT Yee is a Muslim chaplain who the Army relies on to set the moral tone within the force. It cannot tolerate moral turpitude from a chaplain, nor should it. Third, CPT Yee committed his offenses in a very sensitive place. There are two places you don't want to screw up in the Army -- too close to the flagpole (e.g. the Pentagon), and on a high-visibility mission. CPT Yee screwed up in a place that's regarded as critical by the SecDef and others at the top of the food chain.

My prediction: the Art. 32 officer will recommend a court martial for CPT Yee, and the convening authority will probably decide to have one for him. In the end, the politics of this case won't matter much. CPT Yee's case will go to a military jury composed of other military officers, and they will decide the case on the facts and the law. Military juries aren't known for nullification or other displays of irrational exuberance. I can't imagine a military jury not finding him guilty... but all bets are off in court.

Study finds U.S. terror sentences to be brief
Prosecutorial discretion makes a big difference too

The Los Angeles Times reports this morning on an interesting study by the Transactional Records Access Clearinghouse at Syracuse University on the terrorism and anti-terrorism prosecutions since Sept. 11, and the accompanying sentences for those prosecutions. In a nutshell, the prosecutions have been quite numerous, but the average sentence is quite small, leading some to question whether many of these prosecutions were really as important as they were trumpeted to be. Here's an excerpt from the study:
In the two years since 9/11/01, federal investigators recommended the prosecution of more than 6,400 individuals who the government concluded had either committed terrorist acts or who were targeted on the grounds that charging them with some crime might "prevent or disrupt potential or actual terrorist threats."

On the basis of these recommendations, as of September 30, 2003, the government had in one way or another completed the processing of 2,681 individuals who had been subject to these investigative referrals. An analysis of case-by-case Justice Department data obtained by the Transactional Records Access Clearinghouse (TRAC), however, further showed that of the convicted only five have so far been sentenced to twenty years or more in prison and that for those categorized as international terrorists the median sentence ?— half got more, half got less ?— was 14 days.
This is all very interesting, and it should provide great material for further political and academic debate. But check out this section on the actual effectiveness of America's legal fight against terrorism:
Measuring the effectiveness of any enforcement effort is difficult. This is partly because there is no way to count the events that were prevented from happening by alert policing and strong locks ?— the bank robberies that were not attempted, the drug shipments that were not dispatched, the stock swindles that did not go forward. For terrorism ?— where the government's mission is nothing less than to "protect the American people" ?— assessing what it prevented is even more difficult.

It also should be recalled that while the Bush Administration has indeed recommended the prosecution of a large number of individuals who it said were involved in activities that fell into the terrorist or anti-terrorist categories, the government's prevention efforts involve at least four other broad kinds of work that in the main cannot be judged by such factors as the number of criminal convictions. The government, for example, also is responsible for guarding the borders, for taking steps to prevent the hijacking or bombing of airlines, for collecting intelligence about what the terrorists might be planning to do in the future, and for developing improved methods for preventing terrorists from disrupting the nation's electrical, communication and other networks.

One popular measure of enforcement effectiveness, however, has always involved a consideration of the sentences that have resulted from government prosecutions. In the terrorism area, as noted above, the data indicate that by this measure the government effort does not seem particularly impressive.

When it comes to judging the performance of the investigative agencies a second and less well known measure is available: the reasons the assistant U.S. attorneys give when they decide a particular investigation is not worth prosecuting. Six out of every ten terrorism referrals and three out of every ten anti-terrorism referrals that have been acted on, were declined by U.S. Attorneys. (See figure 8.) This amounts to 1,048 terrorism and 506 anti-terrorism referrals that were declined.

For these terrorism and anti-terrorism referrals made since 9/11/2001 that were declined, the Justice Department data show that more than a third of them (34.9%) were rejected because the prosecutors decided they lacked evidence of criminal intent, or that there was minimal federal interest or that "no federal offense was evident." Another substantial number of referrals (14.9%) were declined because they were backed up by "weak or insufficient admissible evidence" (see figure 9).

Arguably, terrorism enforcement is now the single most important challenge facing the Justice Department. And the fact that federal prosecutors have deemed just under half of these referrals (49.8%) unsuitable is disturbing. But very tough questions must be explored before a final judgment is rendered. Are federal prosecutors declining to bring charges because collecting evidence in these particular cases is so difficult? Or does the large number of negative judgments by the prosecutors indicate that the investigators are not doing a good job?
Analysis: Honestly, there's too much in this study for me to analyze right now, and I think that anyone interested in terrorism and the law ought to read this study for him or herself. However, I would like to point out one thing that I think is very important here.

Since Sept. 11, the government has pursued a legal strategy against terrorism which assumes a certain operational paradigm about Al Qaeda. It implicitly assumes the existence of a global terror network, as described by experts like Peter Bergen and Rohan Gunaratna, and that this global terror network is dependent on the "little fish" inside the United States who facilitate immigration, money transfer, and other logistical matters necessary for terrorist operations. To date, the Justice Department's strategy has mostly focused on these "little fish" as the key to unraveling Al Qaeda's global capability, and as the way to finding any actual operational terrorists inside the United States.

Collectively, I think that most Americans (myself included) assume this strategy is working. After all, we haven't had another major attack on U.S. soil since Sept. 11, notwithstanding the anthrax attacks. The terrorists appear to be directing their attention at soft U.S.-linked targets overseas because of our robust law enforcement efforts at home. Indeed, the strategy may be working. It's very hard to know if an anti-terrorism strategy is working, because your best metric of success is the absence of future attacks.

However, the TRAC study makes clear that the American legal strategy against terrorism has an Achilles' heel too. Put simply, nuisance prosecutions or aggressive prosecutions for terrorism-related charges (e.g. 18 U.S.C. 2339b) cannot work in the absence of evidence that will stand in court. You can't pursue suspected terrorists on the basis of mere suspicion, or shadowy intelligence, perhaps the way you could on the battlefield. In the federal court systems, these prosecutions must be based on more. And to the extent that we have aggressively pursued suspects around the country on something less than evidence beyond a reasonable doubt of guilt, then we have run into trouble.

Generally speaking, the Justice Department's front-line prosecutors have done the right thing in these cases by refusing to charge where they lacked sufficient evidence. But that only reveals a larger problem: there is this gap of cases where we think we know the person is a terrorist (or terrorist supporter), but our law enforcement tools can't be brought to bear on that person. What should we do? Should we prosecute them anyway? Detain them as a "materiel witness"? Detain then as an enemy combatant? Monitor them with foreign-intelligence surveillance on the basis of something less than probable cause? Or something else? Our old, tried-and-true system of prosecution may not be the most effective tool for dealing with terrorism. I'm not sure there's a better option out there, though.

Sunday, December 07, 2003
Measuring success in Iraq

Vernon Loeb, one of the Washington Post's defense correspondents, asked four senior American officers in Iraq a rather simple question: "[W]hy they thought they were winning, and what they used as measures of success?" The answers appeared today in the Outlook section of The Post, and reveal an impressive level of sophistication from America's commanders in the field. They understand the breadth and depth of the problem -- perhaps better than their boss, who publicly wondered about how to measure success in his now infamous memorandum.

Here's what one commander had to say:
From Brig. Gen. Mark Hertling, assistant commander, 1st Armored Division:

Your question is a good one. It's not as if we can start counting enemy tanks and determine how many the enemy has left after a major tank-on-tank battle or results of BDA [bomb damage assessment] from Air Support. That's the challenge in an insurgency; it's part of Sun Tzu's dictum of knowing the enemy. So we have to gear metrics toward other means.

On a daily basis, we track frequency and types of attacks -- IEDs, RPGs [rocket-propelled grenades], small arms, mortars, rockets -- and their frequency and locations. . . .

Since Operation Iron Hammer, we have seen a drop-off in attacks against us, and we continue to see a decrease in crime (especially as we put more Iraqi Police and ICDC [Iraqi Civil Defense Corps] on the streets). We are seeing [an] upswing in the perception of U.S. forces' action in the Arab media . . . and a significant increase in tips from the locals of Baghdad, and an extremely significant increase in the turn-in of unlawful weapons. . . .

All these things may be due to the enemy lying low to see what we're doing; it might be due to us having significantly hurt the enemy during the operations; it could be that the thugs and criminals being paid to conduct the attacks are not up for fighting anymore. And, it might also mean that the average citizen of Baghdad is getting sick of fighting, and that same average citizen is better supporting the coalition (which we believe, from our data). Or, it might mean the enemy is gearing up for another offensive. And that's why it's important that we keep the pressure on with offensive operations and civil affairs actions, and working [with] the good people of Baghdad. . . .

Saturday, December 06, 2003
Navy tops Army, 34-6

Congratulations to the midshipmen of the U.S. Naval Academy for their victory over the cadets of the U.S. Military Academy at West Point in today's annual football game between the two oldest service academies. With this win, Navy improves its record 8-4 for the season, and also captures the Commander-in-Chief's trophy for the first time since 1981.

Army says Iraqi sand flies passed parasite to troops

The New York Times reports this morning on an unfortunate development in the health of our soldiers now deployed (and recently deployed) to Iraq. Army medical personnel have detected a strange parasitic infection -- leishmaniasis -- in roughly 150 military personnel, and they've traced this to sand flies that are about as ubiquitous as sand in the Iraqi desert.
The resulting disease, leishmaniasis, has been diagnosed in about 150 military personnel so far, but that is sure to climb in the coming months, the doctors said.

All have only the skin form of the disease, which creates ugly "volcano crater" lesions that may last for months, but usually clear up by themselves.

None have developed the visceral form that attacks the liver and spleen and is fatal if untreated. Military doctors have told all troops who were in the region to carefully watch themselves for persistent fevers.

* * *
Only about 32 of the 500,000 American troops involved in the Persian Gulf war a decade ago developed skin leishmaniasis, he said. But that war was fought mostly in Kuwait in colder weather, before the fly season. However, a dozen developed visceral leishmaniasis. All recovered.

No treatment for either form of leishmaniasis has been approved by the United States Food and Drug Administration, but the military gives 10 to 20 days of intravenous Pentostam, a 50-year-old drug recommended by the World Health Organization.

* * *
Dr. Coleman estimates that more than 1,000 cases may be diagnosed by February. His unit, based at Tallil Air Base near Nasiriya, specializes in detecting and treating chemical and biological warfare, he said, and detects diseases like malaria. "But we spent 95 percent of our time on leishmaniasis," he said.

Dr. Coleman found soldiers who got more than 200 bites in a single night, he said. Because of the heat, he said, soldiers ignored precautions, sleeping outside in their underwear and scorning insect repellent because sand stuck to it.
Analysis: This is very important and very disturbing news. As an initial matter, it should be noted that disease non-battle injury in soldiers is about as old as warfare itself. Historically, disease has killed far more soldiers than actual combat, and only the advent of modern battlefield medicine, vaccinations, antibiotics, and preventive medicine have reversed this trend. Even now, it's not uncommon for soldiers to get strange new diseases on deployments because of the way their bodies interact with the new environments. Social diseases aside, U.S. soldiers contract a variety of maladies when they deploy to unfamiliar (in the biological sense) places like Korea and the Balkans. All it can take is one local meal, or one swim in a local river, to come home with something nasty.

The Army should be commended for finding this bug, isolating it, and determining its cause. That should be no surprise though, because Army medicine has always been top-notch and Army scientists are some of the best epidemiological investigators in the world.

The real story here is the p.r. problem -- and that relates mostly to what happened with Gulf War I syndrome. The NYT story notes that the cure for leishmaniasis -- Pentostam -- may be worse than the actual disease itself. It hasn't been approved by the FDA, but it has been approved and recommended by the WHO. It may or may not have been tested for long-term complications, and it may or may not have been tested for cross-reactivity with other things (e.g. the anthrax vaccine) now in our soldiers' systems. I don't think the Army would give its soldiers this treatment in bad faith if it thought there were problems. But that was true in 1991 as well, with the p.b. tablets given to soldiers and other things.

However, the Army's already doing a better job of disclosing this information to the public, the media, the scientific community, and the soldiers. If there was one major problem after Gulf War I with respect to Gulf War Syndrome, it was the failure to effectively communicate about exactly what happened over there in a medical sense. At least that much has chanced since 1991.

Friday, December 05, 2003
A moment of silence

CNN reports this morning on the murder of Assistant United States Attorney Jonathan P. Luna, 38, who was killed while completing the prosecution of two Baltimore-area drug dealers. I want to express my condolences to his family, friends and colleagues. I think that Mr. Luna's colleague said it well:
"Let there be no doubt. Let there be no doubt that everyone in law enforcement, local police, state police, the United States Marshals Service, ATF, FBI, are united," U.S. Attorney Thomas DiBiagio said. "We will find out who did this and we are dedicated to bringing the person responsible for this tragedy to justice."

Thursday, December 04, 2003
Secretary Powell goes to NATO, hat in hand

The New York Times reports tonight from Brussels that Secretary of State Colin Powell has made an urgent plea to America's allies in NATO for assistance with the continuing endeavour in Iraq. The move comes in the wake of conflicting announcements that America had an exit strategy for Iraq that would combine some measure of "Iraqification" with handover to an international body such as the UN or NATO.
Mr. Powell stopped short of making a specific request from NATO, presenting the proposal as an idea that merited discussion. He also called for a "more robust" role for the United Nations in Iraq.

Ministers in the 26-nation security organization — some of whom staunchly opposed the war that toppled the Iraqi government — reacted coolly to the proposal, with some suggesting that NATO already has its hands full in nearby Afghanistan. But none of them opposed the idea outright, ministers said.

The exchange, at a regularly scheduled meeting of NATO diplomats, was the sharpest indication yet from the Bush administration that it seeks to share the costs and sacrifices of rebuilding Iraq with international partners, even if that means surrendering a measure of operational control.

Faced with a self-imposed deadline of this summer to transfer authority to an interim government, American officials also appear eager to confer greater international legitimacy onto the effort as they wrestle with political challenges and terror attacks in Iraq.

The administration is testing the waters after a series of devastating attacks on allies who have backed the United States in Iraq, bringing recent casualties to Italy, Britain, Turkey, Spain and Japan. All of those governments have said their support will not waver, though public sentiment is rising against it.

"The United States welcomes a greater NATO role in Iraq's stabilization," Mr. Powell told his colleagues in a speech today. "We welcome a more robust United Nations role as well."
Analysis: In addition to the timing issues raised by the article, I think this move is also motivated by political and practical considerations. The political considerations are easy to figure out. If the current situation continues in the current way through the election, it will not augur well for the man who sits in the White House today. That's not to say that we're doing badly in Iraq -- we appear to be making progress in a number of key areas. But we are making that progress at a high cost, and that cost is being displayed very vividly every night in terms of the casualties we are taking in Iraq. The American public will gradually translate continued casualties in Iraq into something less than success. To the extent that international involvement will spread the burden of casualties, this may diminish some of the political fallout the President faces over Iraq. It's a chancy proposition, but we'll see.

The practical considerations are also easy to deduce. America's military is stretched right now to the breaking point. We have committed nearly the entire active Army and a great part of the Marine Corps to Iraq this year, and we have slated a large chunk of our reserve forces to deploy there over the next 2 years. Our mission in Afghanistan continues as well, although with roughly 1/10 the manpower of Iraq. We cannot maintain both missions indefinitely at the current level of intensity and manpower without assistance from abroad. The manpower simply doesn't exist in the American military -- active or reserve. So we must go to our allies. This isn't a new idea; it's something I (and others) suggested shortly after the war. But it's an idea whose time has come, and we simply can't sustain the mission in Iraq without our allies' help.

What's in it for the allies? Besides the chance do the right thing in Iraq, and remake that country as a better version of itself, there's not much besides blood, sweat and tears. But if our allies don't stand shoulder-to-shoulder with America in Iraq, then there may not be much left to the vaunted NATO alliance. Oh sure, NATO fought the air war in Kosovo, and has done some work in Afghanistan since the fall of the Taliban regime there. But that's yesterday's news, and as the old maxim goes, "yesterday's news wraps today's fish." The alliance stands at a crossroads right now, and it may go down the road towards obsolescence and irrelevance if it spurns the U.S. over Iraq. Our allies may not agree with why we went to war; NATO's strategic objectives may not align perfectly with America's objectives for Iraq. But if NATO can't come together to work towards a common goal here, it will do severe (and possibly fatal) damage to the alliance which lasted for nearly 60 years. That's something for our allies to consider in their decision calculus as they mull Secretary Powell's offer.

Slate's diary of an Army officer's wife

This week, Slate has been running an interesting series of diary entries from Lily Burana, an author who's married to an Army officer stationed at the U.S. Military Academy at West Point. It's more irreverent, sarcastic, and caustic than what I'm used to hearing from Army officer wives I knew -- and female Army officers in dual-military couples. But it's also pretty honest, and in an odd way, quite optimistic about the way the modern Army deals with complicated gender issues. I think it's been an interesting and provocative read, and I look forward to Friday's installment.

Who's the turkey?
The story behind the Presidential turkey shoot in Baghdad

The Washington Post reports today that the widely-circulated photo of the President holding a Thanksgiving turkey in Baghdad was staged -- and indeed, that the turkey itself was a fake put on the table for decoration. (Thanks to TAPPED for the story) The real (read: edible) turkey was served from steam trays to the soldiers. Unfortunately, the Presidential turkey photo was picked up and widely printed on Friday morning front pages across America, including that of the New York Times. Here's what the WP report had to say about the matter:
In the most widely published image from his Thanksgiving day trip to Baghdad, the beaming president is wearing an Army workout jacket and surrounded by soldiers as he cradles a huge platter laden with a golden-brown turkey.

The bird is so perfect it looks as if it came from a food magazine, with bunches of grapes and other trimmings completing a Norman Rockwell image that evokes bounty and security in one of the most dangerous parts of the world.

But as a small sign of the many ways the White House maximized the impact of the 2 1/2-hour stop at the Baghdad airport, administration officials said yesterday that Bush picked up a decoration, not a serving plate.

Officials said they did not know the turkey would be there or that Bush would pick it up. A contractor had roasted and primped the turkey to adorn the buffet line, while the 600 soldiers were served from cafeteria-style steam trays, the officials said. They said the bird was not placed there in anticipation of Bush's stealthy visit, and military sources said a trophy turkey is a standard feature of holiday chow lines.

The scene, which lasted just a few seconds, was not visible to a reporter who was there but was recorded by a pool photographer and described by officials yesterday in response to questions raised in Washington.
Analysis: Okay... so the Presidential turkey was a fake. I don't blame the President for picking up a fake turkey centerpiece, because he was probably just trying to be festive. It's not like he tried to carve the thing -- then we'd really have a Presidential gaffe. If there's blame here, it belongs equally to the White House flaks who played up the image, the journalists who reported on the event and took the photo, and the editors who captioned the photo. If the AP tells me something is a turkey, I have neither the veterinary knowledge nor knowledge of turkeys to say otherwise.

In my book, the really important picture from Baghdad was buried. I think it may have run deep inside the print edition of Friday's New York Times, and it was certainly portrayed by broadcast media covering the event. That picture showed the President spooning chow out of the steam trays onto the plates of happy, smiling, grateful soldiers. This picture resonated with me because it echoed an old Army tradition that we followed in my units on Thanksgiving and Christmas Day: leaders served their soldiers. In Korea, the senior NCOs and officers of my unit wore our dress blues and greens to serve this special meal to our soldiers. This tradition was always one of my favorites in the Army; the symbolism of leaders serving their soldiers was always very powerful to me. I saw that same symbolism in the photo of the President in the mess line in Baghdad. Here was the Commander-in-Chief of the armed forces, in a combat zone on Thanksgiving day, serving chow to his soldiers.

Why didn't the NYT run that photo on the front page? I don't know -- maybe it didn't look as good, or the President wasn't looking directly at the camera, or something else. Maybe the symbolism of the moment was lost on the NYT editorial staff, because they didn't know about the tradition of leaders serving holiday meals to soldiers. But that's the photo that counted to me. And in my book, the faux turkey fiasco is much ado about nothing.

Pentagon assigns lawyer to Gitmo detainee

In yet another stunning development in the legal war on terrorism, the Pentagon announced yesterday that it had detailed USMC Major Michael Mori to serve as defense counsel for David Hicks, who is now being held at Guantanamo Bay. An agreement was reached late last month between the U.S. and Australia for the trial of Hicks by military tribunal, and the Pentagon is expected to announce the plans for that trial this Friday. This decision, together with the decision to allow Yaser Hamdi to see an attorney, marks a major shift in the Pentagon's scorced-earth legal strategy since Sept. 11. I'll have more later on this, and the 9th Circuit's decision yesterday, and what it all may mean. Until then, see this Washington Post story and this LA Times story. More to follow.

Econ 101 on the web

The Wall Street Journal (subscription required) recommends five websites today for Internet readers interested in economics -- three of which are weblogs. One of them is already one of my favorite stops for news & analysis: Brad DeLong's economics site. Here's the list of the sites from the Journal:

Brad DeLong (UC Berkeley economist)

Stephen Roach (Morgan Stanley)

Tyler Cowen & Alex Tabarrok (George Mason U.)

John Makin (from AEI and Caxton Associates LLC)

Venture Blog (Silicon Valley venture capitalists)

Wednesday, December 03, 2003
9th Circuit overturns major anti-terrorism law

Breaking news -- the AP reports that the 9th Circuit Court of Appeals has ruled in Humanitarian Law Project v. Ashcroft that the U.S. government cannot criminalize the provision of material support to foreign terrorist organizations (see 18 U.S.C. 2339b) because the terms "training" and "personnel" in the statute are unconstitutionally vague. In terms of impact, this decision could take a big bite out of America's legal fight against terrorism. The Justice Department has made 18 U.S.C. 2339b the centerpiece of its anti-terrorism prosecutions, as I explain in this Writ article, and this may undermine a number of cases -- past, present and future. More to follow.

Update I: Howard Bashman had this story a full 5-6 hours before the Associated Press did. The AP has traditionally been the gold standard of timeliness in the news profession, but Howard's amazing weblog "How Appealing" has set a new standard for timeliness when it comes to legal news. Not only that, but How Appealing contains links to the opinion itself. I can't recommend his site enough.

Update II: The Wall Street Journal's front-page news summary lists this as the top story today, largely for its impact on the DOJ's anti-terrorism prosecutions. Later today, I'll have some thoughts on how this decision affects that legal strategy, and what it may mean for other parts of the war on terrorism.

Pentagon changes course; allows detainee to see attorney
Reversal of fortune for Hamdi signals potential sea change in 'enemy combatant' jurisprudence

After fighting tooth and nail for two years in federal court, the Pentagon announced on Tuesday that it would allow Yaser Esam Hamdi to consult a federal public defender from the military prison in South Carolina where he is currently being held as an enemy combatant. Until now, the Pentagon had staunchly opposed any access to counsel for any of the detainees -- whether the 600 at Guantanamo Bay or the 3 U.S. citizens detained as combatants in South Carolina. Jess Bravin reports in the Wall Street Journal (subscription required) that this reversal is motivated by a number of things, including the Supreme Court's decision to review the detentions at Guantanamo and sharp questioning by the 2nd Circuit Court of Appeals in the case of one of the U.S. citizen combatants (Jose Padilla).
The Defense Department, which had fought efforts to furnish a lawyer for Yaser Esam Hamdi, said interrogators have finished collecting intelligence from him. The decision to allow him access to an attorney is "a matter of discretion and military policy," Pentagon officials said, but they emphasized the government's position that the decision isn't legally required and said it "should not be treated as a precedent."

The move comes after officials said they planned to release more than 100 of about 660 alleged Taliban and al Qaeda fighters held at the Guantanamo Bay Naval Base in Cuba. Last month, the Supreme Court agreed to hear a petition brought by relatives of Guantanamo detainees seeking hearings for detainees.

Officials said the other U.S. citizen known to be held as an enemy combatant, Jose Padilla, would still be held without representation. Last month, facing tough questioning by a federal appeals panel in New York, Deputy Solicitor General Paul Clement said Mr. Padilla could be permitted access to a lawyer when the military was done interrogating him.

* * *
The government has vigorously fought the efforts of Virginia's federal public defender, Frank Dunham, to meet with Mr. Hamdi. A federal judge in Norfolk ordered the government to let Mr. Hamdi meet with Mr. Dunham, but the U.S. appeals court in Richmond, Va., reversed that order. Mr. Dunham appealed to the Supreme Court, which hasn't decided whether to take the case.

* * *
John Yoo, a former Justice Department official who helped draft the policy on enemy combatants, said the move could lead to Mr. Hamdi being prosecuted in civilian court, like Mr. Lindh, or being repatriated to Saudi Arabia. "I can't imagine the government would just release him," he said.
Analysis: I think this signals something else, something which two former top Justice Department officials hinted at in a recent LA Times story. Specifically, I think the comments by former-Assistant Attorney General (and now 3rd Circuit Judge) Michael Chertoff illuminate what's going on in the Hamdi case:
"Two years into the war on terror, it is time to move beyond case-by-case development," Chertoff said, according to an excerpt from a speech he gave last month at the University of North Carolina at Chapel Hill law school.

"We need to debate a long-term and sustainable architecture for the process of determining when, why and for how long someone may be detained as an enemy combatant, and what judicial review should be available," he said.

Chertoff, a federal appeals court judge, also mentioned at a judicial conference in Philadelphia this month the need to reexamine procedures for combatants. "Inevitably, decisions of war are made with imperfect information," he said. "Perhaps the time has come to take a more universal approach."
We're starting to see this "universal approach" come into existence. I think that the administration has realized that its initial stance was "unsustainable", to use Prof. Dinh's word. The courts simply won't allow the government to indefinitely detain prisoners -- whether they be POWs, unlawful combatants or otherwise -- without access to counsel. The courts will give substantial deference to the executive branch and the military when it says it needs to detain these men for a time, or that it needs to detain these men in order to gather intelligence. But at some point, even those decisions must be subject to some form of judicial review. The open question is what kind of judicial review is necessary to satisfy the Constitutional rights of the U.S. citizen combatants (Padilla, Hamdi), and the rights under the international laws of war of the non-citizen combatants (the men at Guantanamo).

The model answer which is emerging looks something like this: the executive branch (either DOJ or DOD) may detain individuals as combatants on the battlefield, whether that's Afghanistan, Iraq, or the streets of New York. The executive branch may interrogate these individuals as combatants, gather intelligence from them, and sequester them as necessary to further the goal of intelligence gathering. But at some point, to be arrived at by a combination of executive discretion and judicial review, the detainee must have access to counsel and possibly access to a court in order to challenge the detention. The courts appear willing to defer such access for the time it takes to gather intelligence.

Prediction: I think two things will start to happen. The first is that the Pentagon will decide, of its own volition, that certain detainees either merit repatriation, release, or access to the outside world. This is consistent both with the Geneva Convention and with the jurisprudence to date on enemy combatants. After the conflict ends, or after a detainee's intelligence value reaches nothing, there is no value to continued detention in complete isolation. Even if we want to detain these guys still, we can probably allow them access to counsel and/or their families through the Red Cross. This move will show good faith to the rest of the world, where Gitmo has become a rallying cry for the international human rights community.

The second thing is that the Pentagon will probably develop some structured way to give measured amounts of due process to the detainees at Guantanamo, and elsewhere. I don't think the Pentagon wants to throw the doors of Gitmo open to the Federal Public Defender, or to Geragos & Geragos. Instead, I think the Pentagon will devise a system through which detainees can petition for a review of their detention with the assistance of military defense counsel -- JAG officers. These lawyers have the unique capability to work for their clients, see classified material, and work within the military framework of laws, rules and regulations. We may even start to see Art. V tribunals to sort the detainees into categories, pursuant to the Geneva Convention. (American forces actually did thousands of these during Gulf War I to sort Iraqi detainees, and it wouldn't be hard to constitute them) If the Pentagon gives the detainees this much process, they'll at least have the ability to challenge their detention and see an attorney -- which should defuse future challenges in federal court.

The open question still remains though: exactly what kind of legal process is necessary to satisfy the Constitutional rights of detainees, and to satisfy their rights under the 3rd Geneva Convention? Historically, very little process has been required at all for enemy prisoners of war -- nothing more than an Art. V tribunal. Indeed, due process is usually reserved under the laws of war for those war criminals who are actually put on trial -- not those who are merely detained. However, the nature of warfare has changed, and the lines between law and war are much more blurry than they were in 1949 when the Geneva Convention was signed. I think this question will continue to go unanswered for some time. More to follow.

Tuesday, December 02, 2003
Markle report finds anti-terrorism info sharing to be poor

The AP reports today on a new report from the Markle Foundation which criticizes U.S. information-sharing efforts in the fight against terrorism. The failure to share information has been cited as one of the top failures leading up to the 9/11 attacks, particularly the failures within the Justice Department and between DOJ and CIA. Unfortunately, too little has been done since then to fix things.
A study by the Markle Task Force on National Security in the Information Age said sharing "remains haphazard and still overly dependent on ... personal relations among known colleagues."

The panel advocates creation of a decentralized information network to spread information about terror threats while safeguarding against violations of civil liberties.

The report proposes construction of an information network to be called the Systemwide Homeland Analysis and Response Exchange, or SHARE. It urges President Bush to begin the process with an executive order.

"Today's threats require us to collect information on individuals here at home, and we need the ability to share that information through a system that is trusted by the American people," said Zoe Baird, president of the Markle Foundation, a private philanthropic organization.

* * *
The electronic network it envisions would be loosely structured, so information could flow freely. There also would be redundancy, to increase the probability that important information would be acted upon, along with encryption, auditing and access controls to guarantee security.

The organization said such a system would allow an FBI agent with a hunch to locate other people at the federal, state or local level or in the private sector.

* * *
Baird said a clear statement of guidelines from the president could prevent the kind of public backlash that greeted two early attempts at informational counterterrorism: the Pentagon's Terrorism Information Awareness research program, and the Transportation Security Agency's Computer Assisted Passenger Prescreening System.
Analysis: Very interesting. I've done some work in this area, and I've always felt that information sharing was one of the most critical pieces of the problem -- right up there with HUMINT collection and threat-based consequence management.

The basic problem is this: there are vertical (e.g. federal/state/local) and horizontal (e.g. L.A./NYC/Chicago or DOJ/CIA/DOD) gaps between the key sectors of the anti/counter-terrorism community. Often times, the key intelligence analysis is done at the national level, or in one local cell like the L.A. County Terrorism Early Warning Group. But indicators of the threat may present at the local level, perhaps in a completely separate part of the country. There has to be a way to share information across these horizontal and vertical divides, in near real-time, in order to put the information into the hands of those who need it. Information sharing is the way to bridge the vertical and horizontal gaps.

Total Information Awareness wasn't really a system for information sharing per se -- but it would have supported an information-sharing system by providing useful analysis of large volumes of data. Unfortunately, the White House and Pentagon didn't sell the program well and it died. Similar programs (e.g. Florida's MATRIX) will probably also die a similar death unless public officials start explaining why these systems are so valuable. For an understanding of why, read the Senate Select Committee on Intelligence's findings and recommendations on 9/11; see how much they discuss the failure to share and disseminate intelligence.

Ironically, the Homeland Security Act of 2002 (Public Law 107-296) contains a provision for the sharing of information -- just as the Markle Foundation suggests. (See Subtitle I, Title VIII of the Act, which includes Sections 891-899) What's the status of the system? I have no idea -- it hasn't been reported anywhere in the past several months.

I do know that federal, state and local law enforcement still lack the kind of system envisioned in the Markle report, now more than 2 years after the 9/11 attacks. If an LAPD officer pulls over someone today for speeding down the 10 freeway, he has no way of learning that this guy is on a CIA watchlist, or that this guy was the classmate of a terror cell leader in Indonesia. Those are the kinds of connections which need to be made by police officers in the field -- our frontline in the war on terrorism. But we don't have the information infrastructure in place to support that yet. We need this information infrastructure yesterday, and every day we go without it is a day the terrorists can exploit against us.

Why the President shouldn't attend funerals

Charles Krauthammer writes provocatively in Time that the President cannot -- and should not -- attend the funerals of fallen servicemen in Iraq. Krauthammer offers both practical and principled reasons for why not, and I think it's a pretty good argument. (Thanks to Donald Sensing for the link)
. . . it is more than a question of arbitrariness. It is a question of strategy. There is a war going on. The insurgents represent the remnants of a regime of torture and repression. They have no chance whatsoever of engendering a popular uprising. They have only one way of winning: by making U.S. casualties so painful that America decides to give up and go home.

That is the enemy's entire war objective: to inflict pain. And that is why it would be a strategic error to amplify and broadcast that pain by making great public shows of sorrow presided over by the President himself. In the midst of an ongoing war, a guerrilla war, a war that will be won and lost as a contest of wills, the Commander in Chief — despite what he feels in his heart — must not permit himself to show that he bleeds. He is required to show, yes, a certain callousness. He must appear that way to the insurgents, who will otherwise be encouraged to think their strategy is succeeding and therefore have yet more incentive to keep killing Americans until it does. And he must appear that way to ordinary Iraqis, who will not help us in this fight unless they are sure that the pain of our losses will not drive us out and leave them to the tender mercies of the Saddamites.

Of course the President cares. Presidents always care. But they can care too much. President Reagan cared desperately, obsessively about the American hostages in Beirut. He sold weapons to Iran, undermined his own war on terrorism and almost destroyed his presidency trying to get the hostages back. It was a terrible mistake. He should have instead adopted a steely callousness and refused to bargain.

Of course this President cares. Bush has met privately with families and has written a letter to every one. And during his Thanksgiving Day address to the troops in Baghdad, he paid tribute to their fallen comrades. In the middle of a war, that is how the Commander in Chief can best honor the dead — in the context not of mourning but of resolve; with acknowledgment of loss, but within a larger demonstration of defiance.

Advice from an old soldier

Retired General Barry McCaffrey had this op-ed in the Wall Street Journal's online edition over the weekend. Definitely worth a read.

The final word on Wes Clark and Waco

In what seems like an awfully big stretch of the "guilt by association" doctrine, some have connected Wes Clark to the FBI/ATF assault on the Branch Davidian compound in Waco in 1993 simply because Clark commanded the unit that gave military equipment to the feds. Glenn Reynolds passes along a letter from the Army JAG officer who was Staff Judge Advocate for then-Major General Wes Clark which definitively squashes those arguments, in my opinion. Here's the text of the letter, which Instapundit got by e-mail:

For the past couple of months, I have followed several internet discussions about Wesley Clark's "involvement" in the Branch Davidian Standoff at Waco, but I have not seen it mentioned so prominently in a mainstream website until it appeared today in InstaPundit. I have not responded to the various conspiracy theories about General Clark's role because most seem to be generated by people with little or no contact with reality. Indeed, your assessment about General Clark's participation in the Standoff and its aftermath is absolutely correct: he played a peripheral role, at most.

I was General Clark's staff judge advocate at the 1st Cavalry Division. As such, I was his legal advisor and provided advice about military support for the FBI at Waco. In addition, I briefed the 1st Cav's tank crews before they departed Fort Hood.

The 1st Cavalry Division received orders from its higher headquarters - III Armored Corps and Fort Hood - to provide certain equipment to the FBI for its use at Waco. I learned the FBI had made a request for equipment to the Department of Defense, which ultimately sent it through Army channels to Fort Hood - the Army installation closest to Waco. The request was consistent with statute (10 U.S.C. § 372), Department of Defense directive, and Army regulation, and I advised General Clark (or, more particularly, his Chief of Staff) of that fact.

At the direction of the division's Chief of Staff, I later briefed the division's tank crews before they departed for Waco. My guidance to the crews was they could provide the FBI equipment (10 U.S.C. § 372), they could train the FBI on its use (10 U.S.C. § 373), and they could maintain the equipment (10 U.S.C. § 374). I told the crews, however, that under no circumstances could they operate the equipment in support of the FBI's Waco operation (10 U.S.C. § 375).

Incidentally, my office's written legal opinion and the slides used to brief the tank crews were turned over to Congress during its Waco investigations, to the Danforth Commission, and to the United States District Court that heard the Federal Tort Claims Act lawsuits arising out of Waco.

I would be happy to provide additional information, but I believe too much ink has already been spilled over what is truly a "non-issue." Of course, the normal disclaimer applies: nothing in this e-mail should be construed as an endorsement on behalf of or against General Clark.

Richard D. Rosen
Colonel, U.S. Army, Retired
Associate Dean for Administration & External Affairs
Texas Tech University School of Law
Analysis: That comports with my knowledge of the Posse Comitatus Act too, and what military units are allowed to do in support of law enforcement. Suffice to say, Gen. Clark was neither the first nor the last military commander to lend personnel and equipment to law enforcement. Even today, thousands of military personnel are engaged in some activity that supports law enforcement -- whether it's to surveil the borders for drugs or provide other forms of support. If you count the Coast Guard as the military, then we have an entire branch of service devoted to law enforcement -- with an important secondary mission of search & rescue.

Will this story die? Probably not, because some people want to keep it alive. But I don't think it has any merit as a criticism of Wes Clark.

Monday, December 01, 2003
The case of Captain McAlpin
Can the Army order a reservist overseas when he doesn't want to go?

Over the weekend, the Associated Press reported on the case of a U.S. Army Reserve officer who was being threatened with "punishment" for refusing to sign a waiver that would permit his redeployment to combat after less than a 1-year stabilization period. CPT Steve McAlpin of the Army's 401st Civil Affairs Battalion spent most of last year deployed to Afghanistan, and his unit was slated for redeployment overseas. However, the Army has a policy against deploying reservists against their will in such short succesion. So the battalion commander came up with a solution: persuade his officers to sign a waiver, to show that they're part of the team. CPT McAlpin refused to sign the waiver, and questioned the very legality of the order. He was relieved of duty, and apparently transferred to the Individual Ready Reserve.
The commander, Lt. Col. Phillip Carey, charges in the memo that McAlpin had a "negative attitude" and was being "insubordinate towards the leadership" of the 401st.

McAlpin said he questioned the waiver last Saturday during a teleconference with Col. Guy Sands, commander of the McAlpin's parent unit, the 360th Civil Affairs Brigade based in Fort Jackson, South Carolina.

About a dozen other officers refused to sign the waiver, as well as four enlisted soldiers called to redeploy, McAlpin said.

"Soldiers are proud to serve any time, anywhere. I'd go tomorrow," McAlpin said from his home in Victor, 20 miles southeast of Rochester. "But I have four soldiers that don't want to go."

The memorandum sent Wednesday commands McAlpin to clear up his affairs at the unit by Monday, when it bans him from battalion grounds. It also transfers him to the Individual Ready Reserves, whose soldiers can be called up in the event of a national emergency.

Instead of signing the reprimand document, McAlpin attached a note of protest, stating his performance evaluations have been excellent and that his record shows "no pattern of incompetence." He also plans to meet with a military attorney.

* * *
A spokesman for the 401st, Capt. Brian Earley, said McAlpin's questioning of the waiver was only one reason he was being disciplined. Individual members of the 401st are allowed to refuse to sign the waiver, but Earley said McAlpin was "butting in" for other soldiers.

"People who were on the mission, who wanted to go, he was questioning their orders," Earley said. "He was pursuing a non-issue."

Earley said the military was also taking action because of "an accumulation of things," including difficulties in one of his previous missions to Afghanistan. He declined to elaborate.
Analysis: The facts in this situation are complicated, but it's pretty easy for me to see what's going on having recently served in the Army Reserve. The first thing to keep in mind is that the only real choice you have in the Army is in making the initial choice to join. After that point, you're subject to the needs and orders of the Army. The Army could, if it wanted to, order CPT McAlpin overseas despite its policy to the contrary. If need be, the Army could even rewrite its original enlistment contract with CPT McAlpin, as it has done to thousands of soldiers who have been affected by "stop loss" over the past two years. But that's not what's going on here.

The Army developed a policy for the management of reservists in these kinds of situations. That policy apparently says that reservists won't be sent on back-to-back overseas tours. Soldiers can waive this right, but as any lawyer will tell you, a waiver must be knowing and voluntary in order to be valid. If the facts in this story are true, then it appears that LTC Carey exerted undue coercion on his command to extract involuntary waivers from soldiers who did not want to redeploy overseas. It's not uncommon for a commander to pressure his soldiers into doing unpleasant things. Leadership sometimes calls for that, and commanders often have to tell their troops to suck it up for the team. But in this case, LTC Carey may have stepped over the line, particularly if he threatened some sort of prosecution for failure to sign the waiver. (Under the Uniform Code of Military Justice, failing to obey a lawful order is a criminal offense)

Unfortunately for CPT McAlpin, the law may not be much help for him. The decision to relieve an officer and transfer him out of the 401st CA Bn is entirely an administrative decision -- and squarely within the battalion commander's discretion. This may be a black mark on CPT McAlpin's personnel file, but that's the way the system works. It's a lot like a civilian job, in the sense that you can be fired. The 401st CA Bn hinted in the story that there may have been some malfeasance in Afghanistan to justify this relief. Maybe... lots of officers bend rules in combat to get the job done. But it really doesn't matter. A battalion commander doesn't need a good reason to relieve an officer and transfer him to the IRR -- just a reason. Every officer makes some mistakes if he/she is a good officer who assumes risk in order to train soldiers well. LTC Carey probably has a reason of some kind that he can use to create the paper trail to support this administrative transfer. And as an administrative action, this transfer isn't really subject to any judicial review or intervention.

Coda: The obvious question is: why put Army reservists through so many mobilizations? First, the Army isn't mobilizing every reservist like the men and women of the 401st CA Bn. These are Civil Affairs soldiers. They are the most sought-after specialty in the Army right now, because of the nation-building operations in the Balkans, Iraq and Afghanistan. Unfortunately, the overwhelming majority of Civil Affairs units exist in the Army Reserve -- just one active duty Civil Affairs battalion exists in the Army today. In the last two years of operations in the war on terrorism, the Army has mobilized almost every single Civil Affairs soldier in its arsenal, and many more than once. This has created the need to double-tap men like CPT McAlpin and others.

It's a hardship, to be sure, especially for anyone who's in the private sector where employers are often less forgiving to their employees in the reserves. But it's also the nature of Civil Affairs, and anyone who joins a CA unit has to know that he/she is likely to be mobilized. Does that explain what happened here? Only the larger context, not the actual facts of this case. I think there's probably some bad blood between CPT McAlpin and his unit, and that's to blame for this.

Farewell to a brilliant educator

The AP reports tonight that Clark Kerr, the former President of the University of California, has died. Kerr is often considered the architect of California's 1960 Master Plan for Higher Education -- widely considered the blueprint for the best public system of higher education in the world. In addition to his brilliant views on the structure and administration of higher education, Kerr was also known for his principles. He stood up for faculty who refused to sign a loyalty oath during the height of the Cold War, and stood up for student protesters at UC Berkeley in the mid-1960s. Indeed, this latter stand was so effective that then-gubernatorial candidate Ronald Reagan made a campaign promise to fire Kerr if elected. (The UC regents fired Kerr in 1967 at then-Gov. Reagan's behest).

I personally came to know Clark Kerr as a reporter for the Daily Bruin from 1994-97, where I covered the UC Board of Regents. Despite his age and eminent position in California history, he was always willing to take my phone calls. And he was always willing to teach a young student (me) about higher education in California, or give me the institutional history behind certain trends like privatization. In every interview, I always felt he was the genuine article -- a man who cared only about the University of California, and the principles for which it stands. Only a few politicians and public administrators have impressed me the way that he did, and I wish we had more of 'em.

President Kerr: thanks for a lifetime of public service to the great state of California. The university and the people will miss you.

U.S. plans to release prisoners from Guantanamo

Nancy Gibbs and Viveca Novak report in Time that the U.S. government plans to release as many as 120 detainees from the prison at Guantanamo Bay, Cuba, where they are currently being held. The news comes on the heels of an order from the U.S. Supreme Court granting limited review to the issue of whether these detainees can challenge their captivity in court, as well as an agreement between the Pentagon and Australian government for the military tribunal of David Hicks.
Though U.S. officials have released some inmates deemed harmless, new ones are still arriving, with about 20 coming and going last week. Amid a global argument about their rights, the Supreme Court recently agreed to decide whether the captives at Guantanamo can at least challenge their detention in federal court. But in the meantime, however great the outcry from allies and human-rights groups, the U.S. military, along with the White House and the Justice Department, has not retreated from an unprecedented approach to prisoners captured in an unprecedented war.

If you are a government hungry for clues about the enemies' plans, one problem with the Geneva Convention governing treatment of traditional prisoners of war is that it includes strict rules limiting interrogation. So these detainees are called "enemy combatants," and there is no field manual outlining the rules for handling them. Inmates arrive with no knowledge of how long they will stay, facing the possibility of trial by a military tribunal whose procedures have yet to be tested, on charges that have yet to be revealed and that carry sentences that may depend on not just what crimes they committed but what country they are from. The U.S. last week cut a deal with Australia that if its detainee David Hicks is found guilty, he will not be executed and will be allowed to have his family in the courtroom and talk to his lawyers without Americans listening in. But the Brits are pushing for more, and what about the inmates from Yemen or Pakistan or Afghanistan? Seeing the risks of multiple standards of justice, Pentagon officials said last week that they are conducting a wholesale review of the tribunal rules.

Washington attorney Thomas Wilner represents the families of 12 Kuwaiti detainees whose case is among those the Supreme Court will hear early next year. He rejects the Bush Administration's insistence that detainees have no legal rights. "The arrogance of saying 'Well, we're feeding them well' is just absolutely absurd," he argues. Two of his clients' fathers have died while they were incarcerated. "They have had children born and parents die.*spaceThey don't get to see their families, and they have no hope of getting out, even if they are innocent. That is what the Geneva Convention is about." Wilner has no problem with the U.S. imprisoning proven terrorists. He just wants a way to establish who the bad guys are. "Can you imagine being an innocent person being swept up into this thing and having no opportunity to say to somebody 'Hey, you've got the wrong guy?'"

So far, the processing of detainees, whether for trial or release, has been slow; the Supreme Court's intervention, however, may have delivered a jolt. A U.S. military official tells Time that at least 140 detainees—"the easiest 20%"—are scheduled for release. The processing of these men has sped up since the Supreme Court announced it would take the case, said the source, who believes the military is "waiting for a politically propitious time to release them." U.S. officials concluded that some detainees were there because they had been kidnapped by Afghan warlords and sold for the bounty the U.S. was offering for al-Qaeda and Taliban fighters. "Many would not have been detained under the normal rules of engagement," the source concedes. "We're dealing with some very, very dangerous people, but the pendulum is swinging too far in the wrong direction."
Analysis: What's going on here? I'm not so sure that the U.S. Supreme Court order had that big of an impact on the detentions at Guantanamo Bay. Clearly, it has officials in Washington worried that their Gitmo house may come crashing down. But even if the Supreme Court held in this case that U.S. courts had jurisdiction to hear challenges from detainees in Cuba, it would still take a while for those challenges to be litigated. So, there's really no reason to act so hastily with respect to releasing prisoners in Gitmo.

Instead, here's my analysis. The release is probably the result of two things:

(1) As the Time writers state, the processing of detainees has been quite slow. However, it's been two years since some of these detainees were captured in Afghanistan, and we've had enough time now to sort out who was a Taliban foot soldier, who was a lieutenant, and who was a bona fide member of Al Qaeda. To the extent that we've isolated those unfortunate foot soldiers who were unlucky enough to be captured, we're now ready to release them, having determined that they have no intelligence value. Repatriation is an important part of the Geneva Convention, and it's supposed to take place at the conclusion of hostilities. The war on terrorism won't end anytime soon, but the phase in Afghanistan probably has ended for the purposes of keeping Taliban foot soldiers in captivity.

(2) America needs more room in Gitmo for any foreign fighters it captures in Iraq, or elsewhere. The war on terrorism has gone on for more than two years now, and we've captured a number of individuals in Iraq, Afghanistan, and elsewhere since the construction of the camps at Gitmo. The U.S. government may have also decided that it needs to focus its scarce Gitmo resources -- prison space, security, interrogators, etc -- on the detainees with the most intelligence value. In other words, those detainees captured most recently.

Ultimately, the release of prisoners is a show of good faith. Historically, the repatriation of prisoners has been a very signficant part of warfare. I'm not sure how this will play on the Arab street, but it should at least demonstrate that the U.S. isn't committed to keeping these men indefinitely at Guantanamo Bay.

Patriot Act author speaks out against anti-terrorism policies

Sunday's Los Angeles Times has an interesting report on the comments by two former members of the Justice Department who have spoken out against the detentions of Americans (e.g. Jose Padilla) as unlawful enemy combatants. Viet Dinh, the former Assistant Attorney General credited with writing the USA PATRIOT Act, and Michael Chertoff, the former Asst. AG who litigated the Moussaoui case among others, have recently criticized the Bush Administration's stance on this issue as "unsustainable".
Viet Dinh, who until May headed the Justice Department's Office of Legal Policy, said in a series of recent speeches and in an interview with The Times that he thought the government's detention of Padilla was flawed and unlikely to survive court review.

The principal intellectual force behind the Patriot Act, the terror-fighting law enacted by Congress after the Sept. 11, 2001, attacks, Dinh has steadfastly defended the Justice Department's anti-terrorism efforts against charges that they have led to civil-rights abuses of immigrants and others. While the Patriot Act does not speak to the issue of enemy combatants, his remarks still caught some observers by surprise.

In an interview, Dinh, a professor at Georgetown University Law Center, said the Padilla case was not within his line of authority when he was in the department, but that he began to think about the issue later, and came to the conclusion that the administration's case was "unsustainable."

Another top former Justice Department official, Michael Chertoff, who headed the department's criminal division, has said he believed the government should reconsider how it designates enemy combatants.

"Two years into the war on terror, it is time to move beyond case-by-case development," Chertoff said, according to an excerpt from a speech he gave last month at the University of North Carolina at Chapel Hill law school.

"We need to debate a long-term and sustainable architecture for the process of determining when, why and for how long someone may be detained as an enemy combatant, and what judicial review should be available," he said.

Chertoff, a federal appeals court judge, also mentioned at a judicial conference in Philadelphia this month the need to reexamine procedures for combatants. "Inevitably, decisions of war are made with imperfect information," he said. "Perhaps the time has come to take a more universal approach."
Analysis: The critiques are notable because both men played an integral part in the development of this stance, and because both are seen as candidates for selection to higher office. Mr. Chertoff was recently confirmed as a judge on the 3rd Circuit Court of Appeals, and Mr. Dinh's name has been mentioned in conjunction with both judicial nominations and future positions within the administration. These are brilliant men whose careers are still on the rise, and I think they're taking a big risk to speak out against the administration in this way.

It's important to note what these two men are not talking about. Mr. Dinh and Judge Chertoff are not criticizing the USA PATRIOT Act (Public Law 107-56), the Homeland Security Act, the use of material witness authority (18 U.S.C. 3144) to detain individuals, or the use of immigration laws to detain and deport individuals suspected of terrorism. They are also not speaking out against the use of Foreign Intelligence Surveillance Act (50 U.S.C. 1801) warrants or any number of other secretive national security measures. Indeed, they're not even talking about the men detained at Guantanamo Bay. They are speaking about the detention of unlawful enemy combatants like Jose Padilla.

However, I think their critique is a valid one. It's one thing to say that we have the right to detain enemy combatants pursuant to the law of war, and that we will do so in our own defense. It's quite another thing to say that we can do so subject to no legal restraints -- not the Geneva Convention, not the U.S. courts, nothing. That's the issue now before the Supreme Court: whether U.S. courts have jurisdiction to hear challenges to the detention of the men at Guantanamo. It's a different issue than what's at stake in the Padilla, Hamdi and Al-Marri cases, but it covers some of the same ground.

I currently have an academic article under submission which proposes a new system for the classification and treatment of enemy combatants -- both the kind at Gitmo and the kind like Padilla. If and when it's picked up, I'll post a link to a draft version. But for now, I'll summarize by saying that we need some principled mechanism for sorting these individuals and dealing with their fate. At some point, the judiciary may need to get involved in that procedure to legitimize it and give the detainees some due process. It has long been said that we are a nation of laws, not men. And as a learned friend put it, we can hardly hope to export the rule of law to nations like Iraq if we don't follow it at home.

Saturday, November 29, 2003
Happy 1-year birthday, Intel Dump

Saturday, Nov. 29, marks one year since the birth of Intel Dump. Thank you to everyone who has visited this page – upwards of 530,000 unique visitors to date. Thank you to everyone who’s linked to me; this weblog would not have reached as many people without your support. And thanks to all those news sources, who by way of federal copyright law, have allowed me to make fair use of their news reporting in order to provide informed analysis here. I don’t know what this weblog will turn into, but it’s been a lot of fun so far. Thanks.

Wednesday, November 26, 2003
Happy Thanksgiving

Intel Dump will resume activity after the Thanksgiving holiday, on Sunday, November 30. Thanks for stopping by, and please visit some of my friends linked on the left side of this page.

Tuesday, November 25, 2003
Pentagon announces U.S.-Australia deal for Gitmo detainee

The Pentagon issued a press release today announcing the terms of an agreement for the military tribunal of David Hicks, an Australian being held at Guantanamo Bay after his capture in late 2001 in Afghanistan. Pentagon lawyers negotiated this deal with Australian authorities, who were concerned that military tribunals might provide less procedural and substantive due process than ordinary American criminal trials. Mr. Hicks was already on a short list of tribunal candidates. With this agreement, I think it's a safe bet that he will be one of the first tried by these procedures at Gitmo. The U.S.-Australian agreement focused mostly on the procedural issues for Mr. Hicks' eventual trial, including:
The prosecution has reviewed the evidence against the Australian detainees, and based on that evidence, the prosecution would not seek the death penalty;

The security and intelligence circumstances of Mr Hick’s case are such that it would not warrant monitoring of conversations between him and his counsel;

If David Hicks is charged, the prosecution does not intend to rely on evidence in its case-in-chief requiring closed proceedings from which the accused could be excluded; and

The U.S. and Australian government will continue to work towards putting arrangements in place to transfer Hicks, if convicted, to Australia to serve any penal sentence in accordance with Australian and U.S. law.

Subject to any necessary security restrictions, military commissions will be open, the media present and appropriately cleared representatives of the accused’s government may observe the proceedings;

If an accused is convicted, the accused’s government may make submissions to the Review Panel;

If eligible for trial, and subject to security requirements and restrictions, an accused may be permitted to talk to appropriately cleared family members via telephone, and two appropriately cleared family members would be able to attend their trial; and,

An accused may choose to have an appropriately cleared foreign attorney as a consultant to the Defense Team. Foreign attorney consultant access to attorney-client information, case material or the accused will be subject to appropriate security clearances and restrictions and determined on a case-by-case basis.
Analysis: This is a really interesting development in the saga of the U.S. military commissions planned for members of Al Qaeda. On the big-picture level, this development represents a retreat of sorts for the Pentagon lawyers who drafted the military commission regulations. Essentially, the Pentagon has given ground on a number of key issues, such as attorney-client monitoring, the use of classified materials, and the use of ex parte proceedings. I think that critics of the tribunals will seize on this agreement to say "the Pentagon is willing to give these things up because they recognize that these procedures are inherently unjust." I think the situation's a bit more complex, but that's the likely argument to be made.

On the micro-level, each of these provisions makes an interesting statement about the nature of the charges against Mr. Hicks, and the evolution of thinking within the Pentagon about the tribunals:

1. "[T]he prosecution would not seek the death penalty" To me, this means the case against Hicks is pretty flimsy -- kind of like the case against John Walker Lindh. I think this guy was probably just a foot soldier -- on the wrong side at the wrong time in the wrong country. Unfortunately, that's a violation of U.S. law, and if he didn't follow the rules for combatancy in the Law of Armed Conflict, it could be a violation of international law too. But it's not a major violation, and it certainly doesn't deserve the death penalty. This interpretation of Mr. Hicks' case is buttressed by the following clause, which states "The security and intelligence circumstances of Mr Hick’s case are such that it would not warrant monitoring of conversations between him and his counsel." Clearly, the Pentagon wouldn't agree to this if they thought Mr. Hicks had any residual intelligence value whatsoever.

2. "[T]he prosecution does not intend to rely on evidence in its case-in-chief requiring closed proceedings from which the accused could be excluded." This means that the Pentagon does think it will use classified evidence at trial. The inference that I draw from this is that Mr. Hicks was a member of the Taliban, but not Al Qaeda, and that the U.S. government doesn't need to use any intelligence sources or assets to describe his membership in that quasi-governmental organization. If this guy were a member of Al Qaeda, a shadowy organization at best, we'd probably need to use some classified evidence to show that.

3. "[M]ilitary commissions will be open, the media present and appropriately cleared representatives of the accused’s government may observe the proceedings". Again, we're not looking at a deep sleeper in Al Qaeda or a leader of that global terror network -- we're looking at a foot soldier. Given the likely facts of his case, there's no reason to shut the media out. Indeed, if this is a slam-dunk case and if the facts are relatively innocuous, this coudl be the deception/diversion/obscuration effort for the rest of the military tribunals. If the Hicks tribunal goes first, it will get a lot of publicity -- more than it probably deserves on the basis of the facts of the case. Let's say the Pentagon throws the doors wide open, and uses this as a case study for how the tribunals can work in a kindler & gentler manner. After the publicity fades, and after public opinion switches to support for the tribunals, the Pentagon can roll out the real bad guys -- and use the full panoply of procedural devices such as ex parte hearings, classified evidence, and closed trials.

Recommendation: Look for the articles tomorrow by Jess Bravin (Wall Street Journal), Richard Serrano (LA Times), and Charles Lane or Dan Eggen (Washington Post). They do the best reporting on these issues, and I suspect they'll have the best analysis in tomorrow's paper.

Army transfers Yee; announces new charges

The case of CPT James Yee, the Muslim chaplain suspected of espionage at Guantanamo Bay, took a strange turn today when the Army decided to release him from the military brig at Charleston to regular duty at Fort Benning, GA. The Army also added new counts to his current charges of mishandling classified information, including allegations of adultery, storing pornography on a government computer, and disobeying a lawful order. The next step for CPT Yee is an Art. 32 hearing, which is somewhat like a grand jury hearing, and then he may face a general court martial for his actions. Suffice to say, the stakes are much lower than when I wrote this article arguing for capital punishment in this case. But I still think there is more here than meets the eye. I expect we'll see more charges in the near future -- more to follow.

An amazing story of human kindness in war

Bryan Gruley tells a great story today in the Wall Street Journal (subscription required) about Lt. John Withers, U.S. Army, and what he did at the tail end of WWII to save two Jewish concentration camp survivors. The story is more remarkable because Lt. Withers was black, at a time when the Army was bitterly segregated, and he could have faced serious sanctions for violating the general orders regarding the treatment of displaced persons at the end of the war. As the story relates, Lt. Withers' humanity won out over his orders.
The two young men stood trembling before Army Lt. John Withers, dressed in the rags they'd worn at the recently liberated Dachau concentration camp. Sores pocked their bony arms and legs. Decades later, the lieutenant would remember how their sunken eyes sought mercy.

But in 1945, near the end of World War II, they posed a problem. Lt. Withers was a black leader in an all-black supply convoy. In violation of Army orders, his men were hiding the refugees. Lt. Withers planned to have the strangers removed -- until he saw them.

They stayed with his unit for more than a year, two Jewish survivors of the Holocaust hiding among blacks from segregated America. The soldiers nicknamed them "Peewee" and "Salomon." They grew close to Lt. Withers. By the time he bid them farewell, they'd grown healthy again.

* * *
Quartermaster units had orders to avoid contact with the Dachau prisoners, Lt. Withers later recalled. His superiors worried that supply convoys would pick up diseases and spread them to other Army units. Researchers at the National Archives couldn't locate specific records of such orders but said other records indicate that Army brass were acutely concerned about health risks posed by Dachau prisoners.

Lt. Withers had learned that it was especially important for blacks to follow orders in the segregated Army. He recalled worrying that sheltering Dachau refugees might get him a dishonorable discharge -- and then there would be no GI Bill for him.

He assumed the two refugees were war-toughened men who were exploiting his soldiers' sympathy. So he was unprepared when the soldiers brought Peewee and Salomon. The refugees seemed shrunken and frightened, really just boys, he recalled thinking.

Peewee would later recall that his knees felt weak as he waited for the lieutenant's verdict. He assumed that his immediate family was dead. He was 16. He had no home, no money and no clothing but what he wore. He wanted no more part of the Allies' displaced-persons camps. In the chaos following the war, he had no idea what to do next.

Lt. Withers assumed that Peewee and Salomon would be returned to Dachau, where thousands of former prisoners were still convalescing, according to Army dispatches from the summer of 1945. He'd been to Dachau on a bread-and-milk delivery shortly after it was liberated. He'd seen bodies decomposing in an open ditch, smelled the rotting flesh. How could he send them back?

"Keep them," he recalled blurting to his men. "We're going to take care of them."

In recent interviews, he struggled to explain why he changed his mind. "I think I identified with them very strongly and instantaneously," he said. He said he also risked losing face with his men. "They were willing to take the chance. If I would have overruled them, I would have been on the wrong side of the decision."
Thoughts: This is the kind of story that makes me proud to have been an American army officer. There aren't many armies in the world that can lay claim to this kind of lineage -- as peacemakers and humanitarians as well as warfighters. Lt. Withers was a junior officer who knew what the right thing was -- and he did it, notwithstanding his orders to the contrary. If faced with a similar situation today in Iraq and Afghanistan, I think my peers would probably do the same thing. There's something about the American military officer that transcends more obeyance to orders; that wants to do the right thing. As Lt. Withers said in the story, he couldn't have done anything different, because to do so would have made him lose face in front of his men. American soldiers know the difference between right and wrong; good and evil. In this case, they chose the right path.

Monday, November 24, 2003
The Pentagon starts a weblog... sort of
New "Penta-blog" service offers RSS/XML feed to the public

I've commended the Pentagon's web page before as a great repository for information -- press releases, transcripts of press conferences, and other useful data. DefenseLink is searchable; it keeps stuff on file for a long time; and DefenseLink is pretty well organized for a government website. Now, the Pentagon introduces an RSS/XML feed for defense news junkies who just can't get enough news from inside the Pentagon. This isn't really a weblog, but it's only a couple of steps removed from one. An RSS/XML feed lets interested parties tune in to information in streaming format, much like a weblog. Indeed, many people consume weblogs almost entirely via RSS/XML. In a few years, I think the weblog and RSS/XML formats will become the standard medium for news sites and public affairs offices who want to offer real-time news in a digestable format.

Of course, I doubt we'll ever get the SecDef or DepSecDef offering up snarky and irreverent commentary on a Penta-blog . . . but anything's possible.

Army reserve starts to see personnel exodus

The Boston Globe has an interesting report on a very problematic trend: declining reenlistments among Army reservists coming home from the war on terrorism. For the past two years, Army and Pentagon officials have maintained that they were on glide-path for recruiting and retention, and that repeated mobilizations were not affecting their ability to get and keep quality people. I was always skeptical of those reports, but the Army had the hard data -- not me. Now, it appears that the rumblings in the ranks were true, and that the numbers support what many have thought for some time: repeated mobilizations have begun to decimate the ranks of America's reserves.
The Army Reserve has missed its retention goal by 6.7 percent, the second shortfall since fiscal 1997. It was largely the result of a larger than expected exodus of career reservists, a loss of valuable skills because such staff members are responsible for training junior officers and operating complex weapons systems.

* * *
With extended deployments and increasingly deadly attacks by Iraqi guerrillas, Defense Department officials are scrambling to combat a broader downturn in retention and recruitment that they fear is on the horizon.

The US Army, the primary service deployed in Iraq, is offering reenlistment bonuses of $5,000 for soldiers serving there. The Army National Guard is extending an official thank-you to members by arranging services to honor returning soldiers. The Massachusetts National Guard is offering rewards ranging from plaques to NASCAR tickets to members who lure recruits. And throughout the branches, recruitment advertising is up and programs are being launched to make the military seem more family-friendly.

The Army also is resorting to a policy called "stop loss" that allows the Pentagon to indefinitely keep soldiers from leaving the service once their time has expired. The policy, used during war, is designed to prevent staffing shortfalls in key sectors.

* * *
While Pentagon officials have insisted that recruiting and retention figures are mostly at or above expected levels, thanks in part to a soft economy that offers little competition, signs of trouble are emerging. Recruiting for the Massachusetts National Guard, a backup to the professional Army and Air Force, was down 30 percent this year. Nationwide, the Army National Guard has fallen 13 percent short of its recruiting goal, although that deficit was offset by fewer than expected troops leaving the service.

Perhaps the most troubling statistic is the drop in retention for the Army Reserve, first disclosed by Army Chief of Staff General Peter Schoomaker on Wednesday in testimony before Congress. The drop was due to the Reserve falling 9.3 percent short of its retention goal among career soldiers.
Analysis: Some background is useful here. The Army divides up its reenlistment numbers in countless ways, and it's often hard to figure out which number matters. The big picture is that the Army Reserve missed its reenlistment goal by 6.7%. The first thing is that this does not mean the Army Reserve is losing 6.7% of its total manpower each year. This statistic means that the Army Reserve has fallen 6.7% of its reenlistment target, which is a subset of that larger attrition figure.

Here's how it works. Let's say the Army Reserve has 200,000 soldiers who are up for reenlistment/discharge in a given year. The Army headquarters decides to set a reenlistment target of 50%, or 100,000 of those reservists who are getting out. To meet the target, Army Reserve commanders have to convince/persuade that many soldiers to stay in the force. If the Army Reserve missed its target by 6.7%, that means that it got 93,300 reservists to reenlist -- and fell 6,700 soldiers short. Not bad, actually. But not good if the Army Reserve has the same trend for month after month, year after year.

The next number is that the Army Reserve missed its "career soldier" retention mark by 9.3 percent. The same math applies, but this pool is different. This group does not include the "first term" soldiers who joined for one hitch and college money. These are the senior sergeants who have been in the reserves for a while, and presumably are pretty close to retirement or already eligble for retirement. These guys have put a lot of time into the reserves, and it says a lot that they're willing to walk away from it. My gut tells me these numbers indicate there's a large pool of guys who basically said "enough" after the last mobilization.

(Thanks to the detail-oriented readers who corrected my math above -- I appreciate the feedback)

One other note: these are aggregate numbers from across the reserve force. We haven't mobilized the entire Army Reserve or National Guard, just a percentage of it. Presumably, in those units that have been mobilized, these retention numbers are a lot worse. My recent experience indicates that the Reserve and Guard can retain as little as 40% of a unit after mobilization, depending on the mission and the unit's leadership. There are a lot of hollow units out there right now as a result of mobilizations, and the collective decision by soldiers to get out.

Is there any good news here? No, and yes. The bad news is that the reserves can't sustain these numbers. If senior sergeants and officers get out in these numbers, it literally decimates the Army Reserves' cadre of leadership, and that has a terrible effect on unit readiness and effectiveness. The good news is that the reserves will gain a lot of recruits from the active force as stop-loss is lifted and soldiers come home in large numbers from Iraq to get off active duty. Typically, the biggest recruitment source for the reserves is the active force. Despite the risk of mobilization, the flow of discharged active-duty soldiers to the reserve forces is still pretty good, and that will fill the reserves with a lot of knowledge and expertise. It may not completely offset this exodus, but it will help.

Over time, however, even this won't help. If the Army Reserve and National Guard continues to have the operational tempo it now does, a lot of active-duty veterans will decline the chance to serve in the reserves. They won't want to join up if it simply means a return to active duty. Second, the current operational tempo will continue to attrit units as they come off of their mobilization, at increasingly high numbers. In the reserves, it has increasingly become a question of when you will be mobilized, not if you will be mobilized. Most of these reservists are willing to go once, but I think the threat of a second or third trip to the desert will cause many to decline reenlistment.

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