News analysis and commentary from Phillip Carter -- now located at http://www.intel-dump.com

"For military analysis, stop by Intel Dump"
-Time

"(One) of the more interesting war blogs on the Internet."
-The Washington Post

"[A]n excellent source for real-time military analysis"
-Slate

 
Justice for enemy combatants?

Viet Dinh, the former assistant attorney general credited with writing the USA PATRIOT Act, has an interesting op-ed in today's Wall Street Journal (subscription required) suggesting that the Bush Administration reconsider its position on the treatment of enemy combatants. Mr. Dinh and Judge Michael Chertoff, another key lawyer in the Bush Administration's legal war on terrorism, recently spoke out against some of the positions taken by the Administration, saying they were "unsustainable". Today's op-ed crystallizes some of those comments, and moves the ball forward by providing a couple of concrete ideas for dealing with these two individuals being held as enemy combatants.

There is room for the administration to move into even safer harbor by providing, after a reasonable period, some procedure for Messrs. Padilla and Hamdi to contest the underlying facts of their detention. It need not be full-dress judicial process. A military hearing to evaluate the information underlying the detention would suffice. The Supreme Court is more likely to defer to an executive judgment when the process by which it is arrived at is capable of inspection.

The developments in the Hamdi and Padilla cases should comfort those who fear executive authority because they indicate that the administration is exercising its discretion responsibly to accommodate changed circumstances. Likewise, those who support executive prerogative should applaud the administration for not pushing the envelope and risking a judicial backlash that would erode presidential authority (remember President Clinton's invocation of the so-called Secret Service privilege?).

The administration's action is especially noteworthy given Congress' silence. After two years of unofficial criticism, especially from members with presidential aspirations, it is time for Congress to contribute its voice -- either to affirm the president's authority or to suggest refinements to administration policy. As Judge Michael Chertoff, former head of the Justice Department's Criminal Division, has suggested, we need to think more systematically about a sustainable architecture for determining when, why and for how long someone may be detained as an enemy combatant.

Update: I always thought the cases of the guys at Guantanamo were somewhat easier than the cases of Hamdi and Padilla. Apparently, they can have operational wrinkles too. A smart reader of mine wrote me with this Agence France Presse report about one of the guys we released from Gitmo. (Hat tip to Winds of Change for getting it first)

Sources in Pakistan and Afghanistan told Time magazine that Mullah Shehzada, who was among 16 Afghans freed from the US base in Cuba, masterminded a jailbreak in Kandahar in October in which 41 captured Taliban burrowed under prison walls with help from bribed guards.

A deputy to Taliban army chief Mullah Fazal Mazloom before his capture during the late 2001 Afghanistan war, Shehzada seized control of Taliban operations against US forces and their Afghan allies in the southern part of the country once he was back in Afghanistan.

So... maybe warehousing these guys for the duration of the conflict isn't such a bad -- or far fetched -- idea after all. I think we're on pretty firm legal ground (per the 3rd Geneva Convention) to detain battlefield prisoners for the duration of the conflict as we're doing at Guantanamo. It's really a question of whether we want to do that or not. So far, we've figured that most of the guys at Gitmo were low-ranking foot soldiers who could be released without the risk of them coming up again to fight us. We may want to reexamine that judgment.
posted by Phillip Carter at 04:48

 
"We got him"

U.S. forces captured Saddam Hussein near his hometown of Tikrit in Iraq. The Pentagon reports that soldiers from the 1st "Raider" Brigade, 4th Infantry Division, found him during a battalion-sized combined-arms raid which included armor, infantry, artillery and Army aviation.

Sanchez described the operation that captured Saddam. The general said it was a cordon-and-search operation, and coalition forces sustained no casualties. In fact, he said, coalition forces never fired a shot.

"For the last several months, a combination of human intelligence tips, exceptional intelligence analytical efforts and detainee interrogations narrowed down the activities of Saddam Hussein," Sanchez said.

Sanchez said intelligence pointed to two likely spots where Saddam could be hiding. He said the Americans struck with lightning speed under cover of darkness. The troops initially did not find Saddam. "As a result, the 1 st Brigade Combat Team elected to cordon the area and conduct an extensive search," Sanchez said. “Coalition forces subsequently found a suspicious location.”

In the search, U.S. forces discovered a "spider hole." "After uncovering the spider hole, a search was conducted and Saddam Hussein was found hiding at the bottom of the hole,” Sanchez said. “Saddam was captured without resistance."

First things first: I'm very proud of our soldiers who executed this mission and captured Saddam Hussein. The 1st Brigade, 4th Infantry Division, is my old unit. I was its MP platoon leader for two years, and I trained with a number of people still in the unit who are over there right now. It gave me enormous pride to see my old unit involved with this operation, and I am proud of them for their perseverance in the hunt for Saddam. Raiders!

The political, strategic, and tactical implications of this event are still unclear. But I think it's fair to say that this will change things on the ground in Iraq. This event will also change the tenor of the debate in this country, and probably help the White House maintain support for the war in Iraq. In the long term, there will be serious questions to resolve about the dictator's fate. My vote would be either for an Iraqi-led criminal trial, or a trial before an international court in the Hague similar to the one now trying Slobodan Milosevic. More to follow.
posted by Phillip Carter at 09:15

 
How to grade our progress in Iraq

Austin Bay has an interesting essay in today's San Antonio Express-News about how to best measure our progress in Iraq, and how to measure whether we're winning or losing. This is something I've opined on also (here and here), and generally speaking, I think it's very hard to define the metrics of success/failure in war. But Mr. Bay, a former military officer too, has some good ideas on the subject:

Football fans check the scoreboard, clock and field position, and if they know the inside game, estimate team morale. In a political campaign, polls clue candidates.

Gauging success in war — as the battle progresses — is iffy, more art than science. Measures of effectiveness, or MOE, is military jargon for assessing an operation's success.

* * *
Measuring security:

The number of free Iraqi police and paramilitary personnel in the field is a rough yardstick, but ultimately Iraqi security is their job. The major U.S. mistake prior to Operation Iraqi Freedom was failing to create a functioning Iraqi constabulary. The United States had 3,000 exiles training in Hungary, but that simply didn't cut it. Interim coalition grade: D.

The number of violent incidents involving the Baath or "foreign" terrorists is a gauge. This figure can also mislead. The paradox: Incidents can increase due to coalition success. Bet that incidents will spike prior to Iraqi elections, but that will be desperate violence by vicious losers. Interim grade: C.

The geographic distribution of violent incidents. Most are confined to the "Sunni Triangle." Interim grade: A-.

Prisoners and casualties. If the 5,000 Baath fighter estimate is accurate, arresting or killing them is an MOE. Dare call it "body count?" The analog isn't Vietnam, it's the Untouchables breaking Al Capone. Interim grade: B-; capture or kill Saddam? A-.

Implementing "rule of law." War crimes trials recommended by the Iraqi Governing Council are a key milestone. Grade: incomplete.

Analysis: The key to these metrics, as to any strategy, is the linkage between the metrics on the ground in Iraq and the strategic goals we've set for the country. Our people in the field naturally follow these metrics, doing all they can to affect them one way or another. If the metrics are decoupled from the goals, our field officers will pursue the metrics, because that's what they're being evaluated against. And over time, you'll gradually see dissonance between how we measure success and how we define success.

So what are America's metrics of success in Iraq? Well, I think Mr. Bay has most of the important ones in his piece. But the official ones are probably being kept pretty closely guarded. Why? Because you don't want to telegraph your gameplan to the enemy, at least to the extent that you can avoid it. If we convey our precise strategy and precise measures of success, we'll create a clear roadmap for the Iraqi insurgents to disrupt this plan. At the same time, the White House has to sell this plan to the American public, and continuously demonstrate success, so some amount of transparency is necessary. The trick is finding the balance.
posted by Phillip Carter at 10:30

 
To make omelettes, you've got to break a few eggs...
New Army chief fights lethargy, tradition, in bid to remake the force

Historically, armies learn more from defeats than from victories. America's Army today is the product of victory in the Cold War and victory in Gulf War I. But that's not good enough for Gen. Pete Schoomaker, the new Chief of Staff of the Army. As Greg Jaffe reports in today's Wall Street Journal (subcription required), he wants to remake the Army so that it can fight tomorrow's wars -- whether they be on the streets of Baghdad, the jungles of South America, or the plains of Europe.

"We're going to have to [change] some of the things that made us the best Army in the world," Gen. Schoomaker told them. "Our values are sacrosanct. But everything else is on the table."

Spearheading the change is an officer almost as unconventional as the Army he is trying to build. Gen. Schoomaker, who was called from retirement by Defense Secretary Donald Rumsfeld this past summer, spent much of his career leading the military's most secret, counterterrorism units behind enemy lines in the Middle East, Central America and other places. His experiences set him apart in an Army that has focused largely on preparing for a major war against a large land power such as the Soviet Union or North Korea.

The net result of the 57-year-old general's changes will be a force that can fight big wars but will also be far more adept at counterinsurgency campaigns, peacekeeping and even some nation-building -- a task that President Bush repeatedly disparaged when running for office.

* * *
"Today's wars are not over when the last shell of the last big battle explodes," explains Joseph Collins, Mr. Rumsfeld's deputy assistant secretary of defense for stability operations. "They're over when we have established a government that can stand on its own, support its people, control its borders and not be a safe haven for terrorists."

If the focus on post-conflict operations represents a change for the Bush administration, it's an even bigger shift for the Army. The service emerged from its scarring defeat in Vietnam deeply committed to avoiding counterinsurgency, nation-building missions.

Instead the Army focused almost exclusively on fighting a big war with the Soviet Union. It designed new equipment such as the M-1 tank and the Bradley fighting vehicle that was ideally suited to war with the Soviets. It developed a demanding, new concept of fighting war -- the highly complex and coordinated air-land battle -- that drove Saddam Hussein's forces from Kuwait in the Persian Gulf War.

With the end of the Cold War, the Army began to see regular demands for peacekeeping. It handled such missions well in Haiti, Kosovo and Bosnia, but it never fully embraced the task of maintaining stability after the end of a combat mission. Officers frequently complained that peacekeeping undermined their readiness to fight a big war. The Army broadened the scope of some of its training centers in the late 1990s to focus more on urban combat and crowd control, but it didn't provide written peacekeeping procedures for front-line company and platoon commanders until this year.

"We haven't approached stability operations in as intellectually rigorous a way as we have combat," says Army Maj. Gen. James Dubik. "Maybe we allowed ourselves as an army to define ourselves too narrowly and in ways that were inapplicable to how we actually served the nation."

Analysis: This last quote reveals an awful lot about the Army and America's defense establishment today. In the 1990s, the military fought to define itself after the end of the Cold War, and never quite got it right. Large parts of the defense community only wanted to focus on "warfighting" -- and not just small warfighting (see the story on the Marines below), but on big combined-arms wars between states. As the last decade has shown, that focus may have been off somewhat. America's military earned its pay during the 1990s in places like Somalia, Haiti, Bosnia, Kosovo, and on the training fields which enabled it to prevail in Afghanistan and Iraq.

So far, Gen. Schoomaker seems like the right guy for the job with the right vision for the Army. He has refined his ideas into a set of "focus areas" for the force, and I think they're pretty good. Here's a representative sampling:

• The Soldier – Develop flexible, adaptive and competent Soldiers with a Warrior Ethos.

• The Bench – Prepare future generations of senior leaders. Identify and prepare select Army leaders for key positions within joint, interagency, multinational and Service organizations.

• Combat Training Centers/Battle Command Training Program – Focus training at CTC and BCTP to meet requirements of current security context, and Joint and Expeditionary team.

• Leader Development and Education – Train and educate Army members of the Joint Team.

* * *
• Active Component /Reserve Component Balance – Redesign the force to optimize the active and reserve component (AC/RC) mix across the defense strategy.

* * *
• Actionable Intelligence – Provide situational understanding to Commanders and Soldiers with the speed, accuracy and confidence to impact current and future operations.

Of these, Gen. Schoomaker has said that "the soldier" is the most important. He has even promulgated a new "Soldier's Creed" (modeled on the Ranger Creed) to build the warrior ethos in America's Army. A common criticism of today's Army is that it has become too bureaucratized; too lethargic; too specialized -- in other words, that many of its soldiers aren't warriors anymore. Gen. Schoomaker is right to focus his efforts first on the soldier -- the basic building block of the force. As one retired general famously said, "Soldiers aren't in the Army -- they are the Army."
posted by Phillip Carter at 10:12

 
The kindler, gentler U.S. Marines
Force headed to Iraq plans to use velvet glove, not iron fist

Michael Gordon writes in today's New York Times that the Marine Corps unit headed to Iraq this spring has plans to do things a little bit differently than the Army. (Thanks to Matt Rustler for the heads up) He starts by writing "No force has a tougher reputation than the United States Marines. But the marines who are headed to Iraq this spring say they intend to avoid the get-tough tactics that have been used in recent weeks by Army units." My first thought was: another reporter smitten by the Marine Corps dress uniform, and probably lots of alcohol at the Marine Corps ball. But there's actually more to the story here, and I think it deserves a read.

Marine commanders say they do not plan to surround villages with barbed wire, demolish buildings used by insurgents or detain relatives of suspected guerrillas. The Marines do not plan to fire artillery at suspected guerrilla mortar positions, an Army tactic that risks harming civilians. Nor do the Marines want to risk civilian casualties by calling in bombing strikes on the insurgents, as has happened most recently in Afghanistan.

"I do not envision using that tactic," said Lt. Gen. James T. Conway, the commanding general of the First Marine Expeditionary Force, who led the Marine force that fought its way to Baghdad and will command the more than 20,000 marines who will return to Iraq in March. "It would have to be a rare incident that transcends anything that we have seen in the country to make that happen."

The increase in guerrilla attacks on American troops in Iraq has prompted Army units in the so-called Sunni triangle in central Iraq to adopt a hard-nosed approach — and spawned a behind-the-scenes debate within the American military about the best way to quash the insurgents.

While some Army commanders insist the hard-nosed tactics have been successful in reducing enemy attacks, other military officers believe they are alienating Iraqis and thus depriving American commanders of the public support and human intelligence needed to ferret out threats.

In an interview at his headquarters at Camp Pendleton, General Conway was careful not to criticize the Army. Still, he indicated that he plans to pursue a very different strategy.

"I don't want to condemn what people are doing," General Conway said. "I think they are doing what they think they have to do. I'll simply say that I think until we can win the population over and they can give us those indigenous intelligence reports that we're prolonging the process."

Analysis: Of course, this isn't new for the U.S. Marines, who in many ways represent America's original counter-insurgency force. Max Boot relays the illustrious history of the Marines in places like Guatemala, Mexico, the Phillipines in his book Savage Wars of Peace, a must-read for anyone interested in the history guerilla warfare. Indeed, the Marines wrote a doctrinal treatise on the subject called the Small Wars Manual, and this text remains the gold standard today for how to wage a counter-insurgency effort. The Marines have a recent history of training for and executing these kinds of missions, including Somalia, Haiti and other efforts in Africa. Although they haven't had as much play in the Balkans, the Marines have a great institutional history for this kind of mission.

So what's the right answer -- iron fist or velvet glove? Both, really. At times, you've got to work with the Iraqis hand-in-hand. This is what nation-building is all about, and you can't really hope to do it right unless you make Iraqis part of every effort from road building to school teaching. But when the guerillas come out to attack your forces, you have to come down on them like a ton of bricks -- hard and fast. I agree with the Marine general who says that such force must be carefully targeted, and I think that's a key lesson to draw from recent experience in Iraq. But the best way to fight a guerilla is to "out-g the g", to use retired Colonel David Hackworth's term of art. The Marines have trained on guerilla warfare for some time, and their light infantry is really good at this kind of thing. I think their deployment bodes well for the U.S. endeavor in Iraq.
posted by Phillip Carter at 07:38

 
Los Alamos National Lab slips a disk... or several

Noah Shachtman, who's been covering the capers at Los Alamos and the other two national labs for a while now, passes on an unfortunate bit of news from the lab. They lost several computer disks thought to contain classified information. Now, this isn't just classified information if it's at LANL. It's super-secret-squirrel classified information about America's holiest of holies -- our nuclear arsenal. Generally speaking, it's not good to lose information in a place like this. If I were on a Congressional committee with jurisdiction over DOE, I'd probably be scheduling my hearings right about now...
posted by Phillip Carter at 12:56

 
The trials and tribulations of Zacarias Moussaoui

Stuart Taylor Jr. has a great essay in the National Journal on the case of Zacarias Moussaoui, a man who has probably done more to frustrate Attorney General John Ashcroft than any man save Larry Flynt. (Thanks to Howard Bashman for the link) Mr. Taylor is a widely respected legal journalist, and I thought his article had a particularly good intro:

It would be no loss to humanity if we dragged Zacarias Moussaoui in front of a firing squad tomorrow and shot him. He has boasted in open court of being a "member of Al Qaeda" and loyal to Osama bin Laden, and of knowing "exactly who" committed the 9/11 mass murders. He has declared, "I, Zacarias Moussaoui, urge, incite, encourage, solicit Muslim to kill Americans, civilian or military, anywhere around the world." He is crazy and evil.

But Attorney General John Ashcroft seems so eager to kill the man that he would shoot a hole in the Constitution to get him. Ashcroft wants to put Moussaoui on trial for the capital crime of complicity in the 9/11 plot, without letting his lawyers take the testimony of three captured Qaeda leaders who may have told interrogators that Moussaoui did not participate in it. That's the watered-down notion of justice that an Ashcroft subordinate urged a federal appeals court in Richmond, Va., to endorse on December 3.

The appeals court should say no. This might keep Ashcroft from getting the death sentence he craves for Moussaoui, since the charges connecting Moussaoui to 9/11 -- which Moussaoui denies, and for which the evidence seems thin -- appear to be the only ones punishable by death under current law. But Moussaoui is doomed to die in prison in any event, of old age if not by execution. And the difference between killing him and locking him up forever is simply not important enough to justify an unfair trial. Indeed, putting Moussaoui to death would be so idiotic that it's hard to believe any sensible official really wants to do it: He's nuttier than a fruitcake, his French mother is an articulate and sympathetic advocate for mercy, and he would be featured as a martyr on Qaeda recruiting posters all over the world. Killing Moussaoui would only increase the supply of terrorists bent on killing Americans.

It just gets better from there -- read the whole thing.
posted by Phillip Carter at 12:48

 
Military defense lawyers to file amicus brief in Gitmo case

Eric Muller points us to an intriguing Law.Com article about some of the defense attorneys in the Pentagon's Office of Military Commissions (which falls under the Office of General Counsel) who are planning to file an amicus brief in the the Al-Odah v. United States case now before the U.S. Supreme Court. Admittedly, this is an unorthodox move for someone in the government to speak out on a pending Supreme Court case, and especially for them to oppose the government position.

In an unusual move that will place them at odds with their commander in chief, uniformed military defense lawyers in the Pentagon's Office of Military Commissions are preparing an amicus brief in the Guantanamo habeas case supporting detainees who are seeking federal court review of their detentions, say sources familiar with the brief.

The defense team, led by Air Force Col. Will Gunn, is likely to argue that preserving ultimate Supreme Court review is essential to the integrity of military commissions, according to those sources. Gunn declined to comment.

* * *
On Nov. 10, the Supreme Court agreed to review a March 2003 ruling by the U.S. Court of Appeals for the D.C. Circuit that federal courts lack jurisdiction to review the detentions of Hicks and several other prisoners at Guantanamo. The justices are currently considering whether to take up Hamdi's petition.

Lawyers involved in the cases say that allowing Hicks and Hamdi to consult with lawyers now signals that the administration may be responding to the pressure of judicial review.

"This happened because the Supreme Court said it might have jurisdiction. It would never have happened otherwise," says Thomas Wilner, a partner in the D.C. office of New York's Shearman & Sterling who represents 12 Kuwaiti citizens held at Guantanamo Bay in the case before the Supreme Court. "It's a shame the administration needs to be put under pressure to do what's right. Allowing someone to see a lawyer should be the normal course of events."

Former DOJ official John Yoo, who analyzed legal issues related to terrorism and detentions as an attorney in the DOJ Office of Legal Counsel, says he does not feel that the administration is attempting to influence the Supreme Court.

"I see this as a sign of a system that is still developing," says Yoo, a visiting professor at the University of Chicago Law School. "There is always going to be a fundamental tension between the purpose and processes of our criminal justice system and the military-intelligence world. We're still figuring out what rules apply."

Analysis: I'll try to find the amicus brief and parse it for legal issues later today, because I'm interested in what it has to say. But politically, I think the analysis here is quite simple. The OMC lawyers received permission (and they had to get permission) from the Pentagon to do this. The reason they got permission is because the Pentagon wants to boost the legitimacy -- in any way it can -- of the detentions and military commissions at Guantanamo Bay. Allowing military defense attorneys to file an amicus brief like this only raises their credibility as independent defense counsel, and shows the world that the Pentagon isn't quite so monolithic on this issue. I'm not sure if this strategy will be effective or not, in a political sense. But if the success of Carter Phillips' "green brief" in Grutter v. U.Michigan is any indicator, the Court may be open to hearing unconventional uniformed points of view.

Update: I can't find a draft of the amicus brief, although I can guess what it's going to say based on the arguments against military commissions that I've read recently. A number of the "insider" pieces on the subject are available from the National Institute of Military Justice's webpage, which is a great resource on the subject. (See the November 2003 issue of Military Lawyer for some great articles on the subject, including one by the head prosecutor in the Office of Military Commissions defending the tribunals) Here are some of the general arguments I'd expect to see from the OMC defense attorneys. (This is a SWAG on my part)

(1) America's federal courts should be available as an avenue of collateral attack for any detentions by the American government, whether they are military or criminal in nature. There is no principled way to distinguish the terrorism cases which fall on the seam of law and war, and we should resolve this gray area by allowing all of these detainees to at least challenge their detention through the habeas corpus procedure. This is the basic issue before the Court in Al-Odah v. United States -- whether federal courts have jurisdiction to hear the challenges of the men at Guantanamo. Using a panoply of sources from international law, domestic law, and military law, I expect the military defense attorneys to argue that federal courts should have such jurisdiction.

(2) In order to facilitate the detainees' petition for habeas corpus, they must have access to legal counsel. The OMC lawyers will likely argue that the Constitution guarantees the right to counsel, and that it must be observed even at Guantanamo. The OMC lawyers will probably also argue that they are uniquely qualified to mitigate any risks the government is concerned with. As JAG officers, they all have security clearances, and can presumably be trusted to deal with the classified information and security issues inherent in these detainees' petitions. At the same time, these JAG officers can be trusted to serve the needs of their clients -- the detainees. This will likely be a part of the OMC amicus brief as well.

(3) [New] The OMC lawyers will also argue that the Treaty Clause (see Art. VI) of the Constitution compels the United States to follow the letter of the 3rd Geneva Convention -- something which has not been done with the Gitmo prisoners. Setting aside any normative issues about the Gitmo detentions, we have not complied with Art. V of the 3rd GC with respect to having "competent tribunals" adjudicate whether these men are lawful prisoners of war or not. As a historical footnote, we held thousands of such tribunal during Gulf War I -- it's practically a METL task for JAG officers to know how to do 'em. I think this is a pretty solid argument too.

(4) Ultimately, the OMC lawyers will argue that President Bush's order establishing military commissions is unconstitutional. If the order is unconstitutional, then any verdicts given down by military commissions under the order will be invalid, thus exonerating the OMC lawyers' clients. This argument will take a number of forms.

- Initially, the OMC lawyers will argue that this order is an unconstitutional extension of Presidential power under Art. II, and that it infringes on Congressional power under Art. I to "make Rules for the Government and Regulation of the land and naval Forces". I think this is a pretty solid argument, although the Court may cite Rostker v. Goldberg for the proposition that it should stay out of issues between the "political" branches.

- Next, the OMC lawyers will make a more specific argument that the 13 Nov 01 order is unconstitutional because it goes beyond the authorization of Congress in Public Law 107-40 (the post-9/11 joint resolution authorizing force in response to those attacks). It's relatively well settled law that the President does not need a declaration of war to commit military forces, but the OMC lawyers will probably argue that all of the government's precedents (e.g. Quirin and Yamashita) were decided when there actually was a declared state of war.

- Finally, the OMC lawyers will argue that the military commissions usurp the authority of the Art. III courts to hear "...all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made...to Controversies to which the United States shall be a Party...". The OMC lawyers will argue first that Congress has created military courts to deal with both violations of the UCMJ and violations of the laws of war, and that such courts should be used. In the alternative, the OMC lawyers may argue that the military commissions obviate the power of U.S. federal courts to hear these cases and controversies that would normally fall within their jurisdiction. (But see Johnson v. Eisentrager) And third, the OMC lawyers will argue that the federal courts should have appellate jurisdiction over the verdicts produced by military commissions. This argument will extend to the U.S. Supreme Court, which "In all the other Cases before mentioned . . . shall have appellate Jurisdiction, both as to Law and Fact".

Ironically, this last point puts the OMC lawyers in direct conflict with both the White House and the Solicitor General's office. It puts the OMC in conflict with the White House because the 13 Nov 01 order expressly precludes the possibility of civilian judicial review, by either the federal appellate courts or the U.S. Supreme Court. This last point will also put the OMC lawyers in direct conflict with the Solicitor General's office. In the SG's Al-Odah brief, they argue that the issue of military commissions is not relevant to this case, because the Court is only hearing argument on whether federal courts shall have jurisdiction to hear challenges to the detentions at Gitmo. Footnote 4 of the SG's brief states:

FN4. The petition states only one other claim: that, “[t]o the extent that [the President’s Military Order of November 13, 2001 (see C.A. J.A. 22-27)] disallows any challenge to the legality of [Hamdi’s] detention by way of habeas corpus, the Order and its enforcement constitute an unlawful suspension of the Writ.” Id. at 13 (Pet. ¶ 25). As respondents have explained (see id. at 47), that claim is without merit. By its terms, the President’s Military Order (§ 2(a)) applies only to non-citizens whom the President determines “in writing” to be subject to the Order. The Military Order accordingly does not apply to a presumed American citizen such as Hamdi, and in any event the President has not made any determination that Hamdi is subject to the Order.

The SG is trying to take military commissions off the table in the Al-Odah case, and they'll probably be successful because the Supreme Court only granted cert on the narrow issue of federal jurisdiction. But that doesn't mean that amicus curae are not going to raise this issue in their briefs. It's just a little odd for the left arm of the Executive Branch (trial defense lawyers in OMC) to directly dispute the legal argument of the right arm of the Executive Branch (the SG's office).

Clearly, the OMC lawyers are looking to shape the battlefield for future legal battles. They are laying the groundwork for future appeals on behalf of their future clients -- the detainees at Gitmo who may eventually be charged and convicted before military commissions. After these convictions, the OMC lawyers will undoubtedly try every possible avenue of appeal, to include the military courts of appeals and the federal court system. Ultimately, the OMC lawyers will take their arguments to the Supreme Court if any of their clients are convicted. This case offers them a chance to test their arguments, and to possibly elicit some positive caselaw from the Court in its Al-Odah decision. Not a bad strategy.
posted by Phillip Carter at 07:15

 
Payback: U.S. bars Russian, French and German companies from Iraq contracts

The New York Times reports this afternoon that the Pentagon has barred companies from France, Germany and Russia from competing for $18.6 billion in post-war contracts in Iraq. The stated reason is that this is necessary for "protection of the essential security interests of the United States". The implicit reason is payback for these countries' opposition to the war in the UN and NATO. On the one hand, I see a lot of legitimacy in restricting the transfer of American taxpayer money to countries we don't agree with. On the other hand, this may make the process of rebuilding Iraq more expensive, to the extent that we exclude companies from these countries that could do it for less. We'll see how this story develops.
posted by Phillip Carter at 13:40

 
U.S. Army discharges two Jewish soldiers
A case of religious discrimination, or maintaining good order and discipline?

David Bernstein at the Volokh Conspiracy passed on an AP story this weekend about two (presumably Orthodox or Conservative) Jewish soldiers who were discharged from the U.S. Army after they disobeyed an order to attend class, and instead decided to attend Yom Kippur services near Fort Huachuca, Arizona.

The two were discharged after disobeying orders by skipping
class so they could attend services for Yom Kippur, the holiest day of the Jewish year.

"Our religion itself says if you are saving somebody's life, you have to [cease the observance]," said Refael Chaiken, a veteran of the Israel Defense Forces, who holds dual citizenship. "No one can convince us not going to class, when you can make it up, falls under that category."

The Army calls the November 14 discharges a simple matter.

"They didn't meet the requirements of the course," said Tanja Linton, a spokeswoman at Fort Huachuca, Arizona, where the Chaikens were
training. "You have to meet the requirements of the course. We really just don't see the story here."

She said the Army acted within its regulation on religious practices, which says it will accomodate religious practices "unless accommodation will have an adverse impact on unit readiness, individual readiness, unit cohesion, morale, discipline, safety, and/or health."

Analysis: David thinks this discharge was "either sheer stupidity or maliciousness on the part of the couple's superiors, made worse by the urgent need for the couple's skills", and Patrick Belton at Oxblog calls it "silly, and stupid". I strongly disagree, and think Matt Rustler has it right when he says this was the right thing to do in the situation:

Yes, Arabic-speaking interrogators are desperately needed, and I'm sure the couple's superiors are keenly aware of this (since they are presumably under great pressure to produce Arabic-speaking interrogators). On the other hand, the military takes a very dim view of disobedience of orders--and with very good reason. It's typically hard enough to get things done properly when everyone is actively trying to obey orders, without the added complication of subordinates feeling free to do as they will despite direct orders to the contrary.

* * *
It may be that the Army concluded, on the basis of this incident and/or information that we're not yet privy to, that the Chaikens' religious beliefs were simply not compatible with military service.

Quite right. First of all, you have to read between the lines of this story. The Army didn't just discharge these two soldiers for missing class, although that would be enough because you can't disobey orders in the military and get away with it. These soldiers failed to meet the standards of the course. I've been around the Army long enough to know that if these were high-quality soldiers, they might have been dealt with differently. Instead, the Army used its codewords to indicate there were other issues with these soldiers besides their failure to report for duty on Yom Kippur.

But I agree with Matt -- you simply can't have an effective military if everyone gets to decide which orders are important enough to obey and which ones aren't. This is especially true in a heterogenous force like the American military, which takes in soldiers from every race and faith in the American population. That's exactly what the Chaikens decided to do in this case. Refael said "No one can convince us not going to class, when you can make it up, falls under that category." Oh really? So now you're going to decide what orders are important enough to follow? What if someone tells you not to wear a beard because it interferes with the fit of your protective mask? Or that your yarmulke has to go because it's a hazard on the flight line? Or that you can't reveal your religion during a particular mission because it could get you killed? Are you going to apply the same religious litmus test to those orders too, Mr. Chaiken?

Things may be different in the IDF, where the overwhelming majority of the force is Jewish, and where a different tradition of church/state separation exists. But the Chaikens aren't in the IDF anymore -- they were trying to be a part of the American Army. And one of the fundamental parts of a disciplined, professional, all-volunteer force is the willingness of its soldiers to follow orders. We don't want robots for soldiers, but we don't want junior enlisted soldiers who deconstruct and question every order like the Chaikens did with this one.

And to borrow from one of my platoon sergeants, the military isn't like Burger King -- you don't get to have it your way. Military service is not about "me" and what "I" am entitled to -- it's about what "we" can collectively accomplish as a unit. These soldiers may have had serious issues with this ethos, as exemplified by this incident. These soldiers were unwilling to subordinate their religious practices to the needs of the Army, and they were discharged because they knowingly and willingly disobeyed an order in pursuit of their personal welfare. Selfless service is a time-honored principle of military service, and I'm not sure the Chaikens get it.

The AP article quotes a retired Marine colonel who served in Vietnam who said he was able to leave his artillery battery to go to Jewish services. Maybe... though I question a combat commander who leaves his troops in battle to take care of himself. As a Jew who's served recently as a U.S. Army officer, I will tell you that's sometimes not an option. I often missed important religious services in Korea, Texas and the Mojave Desert as a platoon leader because I couldn't leave my platoon to attend synagogue. Our rabbi in Korea (a great American) made a special point of contacting Jewish soldiers in the 2nd Infantry Division who couldn't attend services to reach out to them, because he knew that their mission was often more important than their attendance at services. The mission always has to come first in the military, and mission accomplishment often requires some amount of sacrifice from every soldier. Whether it's missing Easter services, your child's first birthday, or some other key event in your life, this is the life of a soldier. It's naive to think that you can have it your way, and that if you don't get your way in the Army, you can simply disobey orders to do what you want.

Bottom Line: I don't think the Chaikens fully understood the concepts of sacrifice and selfless service as they apply to military service. If I were their commander, I would've disciplined them too for deciding that their religious needs were more important than their orders. Better to figure that out about these two soldiers now, in a training environment, than to learn they would disobey orders when you're in combat.

Coda: And if you think that the First Amendment should dictate another outcome, see Goldman v. Weinberger, 475 U.S. 503 (1986), where the Supreme Court held that the First Amendment did not prohibit a regulation proscribing the wear of the yarmulke by Air Force personnel.
posted by Phillip Carter at 13:18

 
A new home for a great weblog -- check out Robert Tagorda's new and improved Priorities & Frivolities at its new address. One more "professional" blogger makes the leap from Blogger... who will be next?
posted by Phillip Carter at 12:57

 
Thoughts on 'broken windows' and law enforcement

Mark Kleiman, a noted sociologist in his own right, has some great thoughts on his weblog about the theory of "broken windows", which came up at a recent forum on public safety hosted by the Milken Institute. Apparently, the forum included Prof. James Q. Wilson and George Kelling, who are widely credited with developing the idea back in the late 1970s and early 1980s as a model of crime control and order maintenance. Mark offers this insight into the theory, and how it is often misspun by public safety professionals and pundits today:

There have always been two versions of the "broken windows" idea, but the two are often confused. Both are arguments for cracking down on relatively minor offenses as ways of reducing major crime, but the proposed mechanisms are entirely distinct. (Both might be at work, but neither implies the other.)

Broken Windows (A), the source of the original metaphor, is a fundamentally a "signalling" idea. It holds that minor crimes, and even conditions that are not themselves criminal, convey to people who might commit major offenses the implicit message that the territory in question is "unowned" and out of control, and therefore a safe place to commit a crime.

Wilson said frankly that the evidence for Broken Windows (A) as a crime control strategy was suggestive but less than convincing. (It's probably much more effective in some circumstances than others.) He also said that the justification of Broken Windows (A) policies didn't rest on its efficacy in controlling major crime, but in the fact that if you talk to people in disordered neighborhoods, order maintenance is what they want. Broken Windows (A), he said, contributes to "public happiness," whic is a legitimate purpose of democratic government. If it also controls major crime, that's a bonus.

Broken Windows (B), while it supports the same policy, is a completely different argument. It rests on a demonstrable fact about offenders rather than a plausible, but still speculative, idea about situations. Ever since Jan and Marcia Chaiken's Varieties of Criminal Behavior, we've known that people who commit a lot of serious crime are usually (not always) people who commit a lot of crime, period. Most people who -- to use Kelling's examples -- jump subway turnstiles or park in handicapped zones -- aren't armed robbers, but arresting a random sample of fare-beaters or handicapped-zone-parkers will likely yield a disproportionate number of armed robbers.

posted by Phillip Carter at 12:55

 
DOJ responds to TRAC report on anti-terrorism prosecutions

The Washingon Times reports this morning on the Justice Department's stern response to the report issued on American anti-terrorism prosecutions by the Transactional Records Access Clearinghouse at Syracuse University. The DOJ response matches my analysis, which was that federal prosecutors have been forced to stretch the anti-terrorism laws (e.g. 18 U.S.C. 2339b) beyond what their evidence can handle, and that aggressive prosecution was not necessarily leading to high conviction rates or high sentences. Here's what the DOJ spokesman had to say:

"The Department of Justice's top priority is the prevention of future terrorist attacks," said spokesman Mark Corallo. "Since September 11, this work has included not only the prosecution of overt terrorist acts, but also of cases to prevent potential terrorist activity."

* * *
Mr. Corallo questioned TRAC's methodology and analysis, saying the report "ignores the value of early disruption of potential terrorist acts by proactive prosecution of terrorism-related targets on less serious charges."

Analysis: Exactly right. Note what the spokesman says in the first comment -- that the Justice Department's top priority is the prevention of terrorist attacks -- not the arrest, prosecution and conviction of terrorists after the fact. This is a paradigm shift from before Sept. 11, when the most important DOJ function (going all the way back to J. Edgar Hoover) was to catch and convict the bad guys. Today's Justice Department would rather deter future terrorist attacks through aggressive (and maybe not successful) prosecutions than achieve a high conviction rate.

Similarly, the DOJ's second comment supports this interpretation. Even if federal prosecutors aren't convicting terrorists in every case they bring, they are possibly deterring certain kinds of behavior which is instrumental to global networked terrorism -- like the contribution of money to foreign terrorist organizations. The DoJ is less concerned with its conviction rates than it is with preventing future attacks, and I think that's a good thing. The TRAC report doesn't highly any DOJ failure so much as it highlights a disconnect between the old model of criminal law enforcement and the new face of anti-terrorism enforcement.

The TRAC report doesn't really acknowledge this paradigm shift, nor does it figure out any way to measure the value added by unsuccessful anti-terrorism prosecutions. I'm not sure that you can measure deterrence, in any event, for a number of conceptual and methodological reasons. But this is one more instance where the old paradigm of criminal law enforcement may not be applicable anymore in the new age of global networked terrorism.
posted by Phillip Carter at 11:46

 
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.
posted by Phillip Carter at 17:59

 
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.
posted by Phillip Carter at 10:56

 
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. . . .

posted by Phillip Carter at 17:43

 
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.
posted by Phillip Carter at 16:36

 
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.
posted by Phillip Carter at 06:41

 
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."

posted by Phillip Carter at 09:08

 
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.
posted by Phillip Carter at 17:28

 
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.
posted by Phillip Carter at 17:11

 
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.
posted by Phillip Carter at 15:14

 
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.
posted by Phillip Carter at 08:39

 
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)
posted by Phillip Carter at 08:34

 
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.
posted by Phillip Carter at 18:38

 
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.
posted by Phillip Carter at 09:44

 
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.
posted by Phillip Carter at 14:09

 
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.

posted by Phillip Carter at 13:18

 
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.
posted by Phillip Carter at 13:15

 
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.
posted by Phillip Carter at 13:03

 
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.
posted by Phillip Carter at 18:58

 
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.
posted by Phillip Carter at 18:53

 
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.
posted by Phillip Carter at 08:30

 
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.
posted by Phillip Carter at 08:09

 
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.
posted by Phillip Carter at 23:55

 
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.
posted by Phillip Carter at 04:31

 
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.
posted by Phillip Carter at 17:37

 
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.
posted by Phillip Carter at 17:36

 
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.
posted by Phillip Carter at 08:08

 
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.
posted by Phillip Carter at 18:09

 
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.
posted by Phillip Carter at 10:36

 
House committee to hold hearings on LTC West

The House Armed Services Committee put out a press release this morning announcing that it would hold hearings on the case of LTC Allen West, a former artillery battalion commander in Iraq who may face a court-martial for allegedly mistreating an Iraqi prisoner. (Thanks to M.L. for the e-mail) At this point, the military inquiry into LTC West is in the preliminary stages. His unit (the 4th Infantry Division) held an emotional Art. 32 hearing last week, and the decision has not yet been made to court martial him. However, an offer to let LTC West resign in lieu of court martial has lapsed, and all tea leaves point to a decision by his CG to try him in court.

Based on the information currently available to them, Hunter and McHugh believe that West's actions may well have been necessary to protect the lives and safety of his fellow soldiers and not the actions of a criminal, as he is charged. Hunter is Chairman of the House Armed Services Committee and McHugh is Chairman of the Subcommittee on Total Force, which has jurisdiction over military personnel matters.

According to news accounts, the incident in question took place this past August near Tikrit, Iraq, when guerrillas attacked U.S. soldiers under West's command. An informant told U.S. authorities that a local policeman was involved. West ordered the policeman brought in, though he proved uncooperative. West has testified that he fired his pistol near the head of the Iraqi, threatening to kill him in an effort to obtain information to protect his troops. As a result of the tactic, the Iraqi provided information regarding a planned sniper attack on U.S. soldiers. Two insurgents were arrested, a third fled and there were no attacks in the area. West immediately informed his commanding officer of the incident. He is currently facing an inquiry to determine if there is cause for a court-martial.

"We are highly disturbed by media accounts that the Army is beginning criminal proceedings against Lt. Col. Allen B. West for taking actions in Iraq that he believed were necessary to protect the lives and safety of his men," stated the Congressmen in a letter to Les Brownlee, Acting Secretary of the Army. "To us, such actions if accurately reported do not appear to be those of a criminal," the letter continues.

In addition to the information previously requested, the Congressmen are asking to see a new report. "We are aware the Army has completed a preliminary inquiry regarding whether to proceed to a court martial and would like to review that report," said Hunter and McHugh in a joint statement. "Our interest is in justice. Based on what we know right now, it is more than reasonable to assume that Col. West acted in a manner proportionate to the threat against his soldiers."

Analysis: This is really strange. First, it should be said that Congress has the Constitutional authority under Art. I, Sec. 8, to make laws for the governance of the armed forces. But I'm not sure if they have the authority to exercise direct oversight of the military justice system in this fashion. Although Congress passed the statutes (the UCMJ and others) which set up the military justice system, that may be the limit of their authority. Everything else may fall within the President's sphere of responsibility as Commander-in-Chief, per Art. II of the Constitution. So there are Constitutional questions raised by this press release.

Second, if the President or SecDef exercised this sort of prerogative, it would almost definitely be seen as a case of "unlawful command influence." According to law and custom, senior officials and higher headquarters are not supposed to intervene from above in courts martial. The 4th Infantry Division's commander, MG Ray Odierno, is supposed to make the decision to try or not to try on his own, on the recommendation of his Art. 32 hearing and the counsel from his Staff Judge Advocate. This move by HASC may give LTC West some ammunition for his appeal if he is ultimately tried and convicted.

Finally, even if Congress does have the power to hold this hearing and it's not command influence, I'm not sure this is a wise thing to do. If Rep. Duncan Hunter is truly concerned about the Rules of Engagement in Iraq and other operational law issues, he can hold hearings on that. Indeed, he can subpoena just about anyone he wants on the subject, up to and including the Secretary of Defense. If there is a problem with ROE in Iraq, such a macro-level look may be better for policy reasons than a micro-level look at LTC West's case, or a macro-level look through the lens of LTC West's case. The facts of LTC West's case are, as they say, not good for the defense. In addition to allegedly protecting his unit, he ordered his soldiers to do his "wet work", and then let them be tried by the same military justice system he now stands accused in.

If I were the decisionmaker here, I probably wouldn't try LTC West, anymore than I would try some of the other officers who have made tough decisions in wartime. My reason is that I wouldn't want to communicate to commanders in Iraq that they will be second-guessed by a court martial for errors in judgment. Ironically, by intervening here, Congress may be sending that same message on a higher level: if you make a discipline decision we disagree with, we'll hold hearings back in Washington. That may not be the best thing for LTC West, or the Army, or the mission in Iraq.
posted by Phillip Carter at 10:03

 
Real combat heroines

For those that think women have no place in ground combat, there's this excellent report from Baghdad by Vernon Loeb of the Washington Post, one of the 10 best reporters on the military beat. (Thanks to M.L. for the tip) Loeb writes about several women now serving in Iraq as Army military police soldiers, an MOS where they often find themselves fighting as scouts or infantry. Thanks to tough training and good leadership, gender hasn't gotten in the way of these women's performance in Iraq, as this story shows:

Pvt. Teresa Broadwell is in the middle of the maelstrom, standing on tiptoe in the turret of a Humvee in a vain attempt, at 5 feet 4 inches tall, to see through the sight of her M-249 machine gun. American soldiers are down in the street. Iraqis are firing at her truck from the rooflines and alleyways along Highway 9 near the center of this dusty city an hour south of Baghdad.

Her lieutenant, Jay Guerrero, jumps out of the Humvee to help rescue his wounded comrades. He needs Broadwell's cover to suppress the Iraqis' withering fire and listens for the distinctive bursts of her potent weapon.

Before this gun battle ends, three Americans will be killed and seven wounded. For Broadwell, 20, a year and a half out of high school, having chosen the Army over a modern-dance scholarship to the University of North Texas, her moment of truth in combat has arrived.

The Army prohibits women from serving in infantry, artillery and armored units, the combat brigades on the front lines of war. For years, women like Broadwell and her commander in the 194th Military Police Company, Capt. Terri Dorn, have chosen careers in the Military Police Corps because all jobs in the field are open to women (34 of 171 soldiers in Dorn's company are female) -- and it is the closest a woman can get to serving in the infantry.

Women MPs have engaged in combat operations before, in Panama in 1989, in the first Gulf War in 1991 and in Bosnia in the mid-1990s, when the peace in what became a peacekeeping mission was still taking root. But their missions were short-lived, and they were designed to support conventional combat troops.

In contrast to those previous deployments, the military police are in Iraq for the long haul and they're in the thick of the action. The Army faces a low-intensity counterinsurgency campaign without front lines, in which troops are being asked to move back and forth between peacekeeping and combat. MP companies, with their heavy complements of women, are often performing exactly the same mission as all-male combat units. And the MPs have become the units of choice for many commanders, given their infantry-like capabilities and the extra training they receive in policing and stability operations.

When mounted patrols from the 82nd Airborne Division move through Fallujah, the machine gunners standing in Humvee turrets are all male. When military police companies conduct identical patrols throughout Iraq -- in Baghdad, Tikrit and Karbala, to name just a few -- the gunners are quite often women.

Analysis: As several of the women point out in this story, the MP corps is really the leading edge for women in the military. It's the closest they get to being in the combat arms -- and many times, the MP corps is a combat force that sees as much action as the infantry. One thing that often gets missed is that MPs are more likely to see other kinds of action, e.g. riot control or hand-to-hand combat, than their infantry brethren. And MPs are also likely to be tapped for urban missions like cordon-and-search, or other "kick in the door" operations.

In my experience as an MP officer, women like PVT Broadwell and her commander, CPT Terri Dorn, were the rule, not the exception. Women who join the MP corps and make it through basic training (or officer selection) are typically more motivated and more mentally prepared than their male peers. Though they may lack some of the upper body strength and size of their brethren, they quickly make up for it in marksmanship, street smarts, and interpersonal skills (all important skills for an MP). In fact, the female MP officers I knew were head-and-shoulders above the average male officer, and were often some of the best leaders you could find in uniform. Again, the dynamics of self-selection had a big role here, in that the toughest and most motivated women from West Point and ROTC knew the MP corps was where the action was at. (The same is true for women in the aviation and the MI branches)

So what does this mean for the larger debate over women in combat? Well, as I wrote nearly a year ago in the Washington Monthly:

In the end, what will really determine public reaction is how well women perform their jobs under fire. On the ground in Afghanistan, women did not participate in the main actions of Operation Anaconda. But since the fighting died down, female MPs have gone out on long infantry patrols with the 82nd Airborne Division, and by most indications perform-ed well. To be fair, they have not seen combat, and haven't performed the most physically demanding tasks the military has to offer. But women have covered 10 to 20 miles of very hard country per day carrying loads of up to 75 pounds, all while living in close quarters with male infantry.

And so far, as in the Gulf, the worst predictions have not come true--no reports of mass pregnancies or other issues have come to light in Afghanistan. "I'm learning what grunts do, [and] they learn what I do. As MPs, we search people and look for weapons ... I never thought we would be walking for hours or be on the front," MP Sgt. Nicola Hall told a reporter in Afghanistan after the mission. "[The 82nd Airborne soldiers] have been nothing but respectful to us; as long as you walk, carry your own weight and don't whine, you're respected."

Indeed, if mixed-gender units perform as they have in the California desert--and in Somalia, Haiti, Bosnia, Kosovo, and Afghanistan--it would strengthen the integrationist trend in several ways. The least likely possibility would be the elimination of all rules barring women from full combat service, from special forces to light infantry. But even if this were to happen, surveys suggest that only a small number of women would apply. And only a fraction of those who do would have the physical ability and fortitude to make it through, say, the crucible of Army ranger school, from which a majority of qualified men wash out before graduation.

The second, and more likely, possibility is that certain combat jobs currently off-limits to women would be opened. For instance, women can currently serve in Patriot air-defense units, but not in short-range air-defense or offensive artillery units closer to the front--even though the skill levels are virtually the same. Female soldiers frequently win the Army's highest awards for marksmanship and even participate on the U.S. Olympic marksmanship team--but outside the MPs cannot be snipers. If Saddam's Baathist regime falls to U.S. forces that include women, these kinds of job limitations may collapse, too.

Finally, a successful showing by female soldiers is sure to increase pressure on the Army to end the subtle day-to-day discrimination that remains a fact of life for so many female soldiers, from anachronistic "wives clubs" in some units to assignment policies that place a premium on female soldiers willing to defer childbearing indefinitely.

I think the proof is in the way that women have performed in Iraq -- both in "major combat operations" and in the guerilla war since 1 May 03.
posted by Phillip Carter at 07:51

 
Assessing blame for the Istanbul attacks

The Washington Post reports today on the reaction of President Bush and Prime Minister Blair to the bombing in Istanbul, which killed the British consul-general among others. The article is misleadingly headlined "Bush, Blair Say Iraq War Is Not Cause Of Attacks". The story's lead paragraph goes on to say that "President Bush and British Prime Minister Tony Blair declared Thursday that the invasion of Iraq was not to blame for the recent wave of terrorist violence and that bombs that devastated two British facilities in Istanbul . . . ", but the rest of the story (and its quotes) do not support this assertion:

"Our mission in Iraq is noble and it is necessary, and no act of thugs or killers will change our resolve or alter their fate," Bush said at a joint news conference with Blair, as tens of thousands of demonstrators protested the Iraq war on streets nearby. "We will finish the job we have begun."

The two leaders spoke hours after Britain was stunned by the news that two truck bombs aimed at British targets killed at least 27 people in the Turkish city of Istanbul. British civilian facilities had up to now escaped being targeted in the string of terror attacks that have followed those of Sept. 11, 2001.

Blair echoed Bush's remarks, calling for attacking terrorists "wherever and whenever we can."

Okay. So far, that's the sort of defiant "still upper lip" rhetoric we expect to hear from political leaders after a terrorist attack. However, the only quote that supports this headline is buried far down in the story:

At the news conference, Blair responded with pique when asked if the U.S.-British alliance in Iraq has invited terrorist attacks such as Thursday's. "What has caused the terrorist attack today in Turkey is not the president of the United States, is not the alliance between America and Britain," he said. "What is responsible for that terrorist attack is terrorism, are the terrorists."

Analysis: Tony Blair is a brilliant orator and statesman, but I think he's wrong. First of all, his comment is both circular and conclusory. He asserts that terrorism is responsible for the terrorist attack. That says nothing. Moreover, it ignores an essential element of the definition of terrorism, which is that terrorism is politically or ideologically motivated violence. It is not violence for its own sake, or violence for pecuniary gain, as crime is often described. Terrorism is violence for a purpose. The purposeful targeting of British nationals in a Muslim nation provides strong evidence of the purpose behind this attack. While Al Qaeda has not explicitly claimed these attacks, nor linked them to Iraq, I think that's a fair reading of the tea leaves.

Update: The WP also has this excellent analysis of who was behind the Istanbul attacks. The article makes two important points. First, Al Qaeda has morphed into a far more decentralized and dangerous enemy than on Sept. 11. Second, the real enemy is Islamic international terrorism writ large -- an Al Qaeda is only one of a number of groups committed to global terrorism in the name of Allah. Al Qaeda's doctrine may have inspired these attacks, and its TTPs may have been used for them, but the actual act may have been carried out by anyone in the loose confederation of international Islamic jihadists.

One senior U.S. official said al Qaeda's children were "growing up and moving out into the world, loyal to their parents but no longer reliant on them."

Intelligence officials and analysts said the evolution posed new challenges to efforts to combat terror, because rather than facing a few defined, recognized targets, counterterror forces had to confront dozens of small groups that were much more difficult to trace and attack. And, they said, knocking out one small group does not have the same crippling effect as taking down a major leader of a large organization.

"The threat has moved beyond al Qaeda," said Rohan Gunaratna, a terrorism expert at the Singapore-based Institute of Defense and Strategic Studies. "While al Qaeda was the instigator of recent attacks, very few have actually been carried out by al Qaeda."

* * *
"Al Qaeda is as much an ideology as a structure," said Magnus Ranstorp, director of the Center for the Study of Terrorism and Political Violence at the University of Saint Andrews in Scotland. "Iraq is now the center of gravity, but I think they are seeking out soft targets and hitting from every flank imaginable by any means. This is an ongoing, raging war with all the gloves off."

Michael Pillsbury, a Pentagon terrorism consultant, argued that the evolution of the terrorist groups is analogous to a process of corporate merger and acquisition. At a terrorism conference earlier this year at St. Andrews College, Pillsbury said regionally focused terrorism groups with their own particular agendas join with al Qaeda to learn their operational techniques or benefit from their contacts, but are not subordinate to al Qaeda.

For example, he said, Jemaah Islamiah seeks to create a pan-Islamic state in Asia, an agenda that has little to do with driving U.S. forces out of Saudi Arabia or other goals of bin Laden's. "They like to get advice and equipment from al Qaeda but still have their own political agenda," Pillsbury argued.

This story quotes all the "giants" in the field of terrorism, and is about as accurate as any threat assessment I've seen lately.

There is some tragic irony here. Al Qaeda has built an international coalition of sorts with which to wage multilateral, networked, global jihad against the West. The Western coalition in the war on terrorism is strong, but it also shows some signs of fissure over issues like Iraq. America's best hope for defeating such a global networked threat is to build a network of its own -- it takes a network to fight a network.
posted by Phillip Carter at 11:11

 
Army sergeant develops a new body warming system
Battlefield innovation shows the ingenuity of the American NCO

There's an old maxim of leadership in the Army that if you tell someone how to do something, you'll get results, but if you tell someone what to do, they'll often amaze you with their initiative and brilliance. Army Staff Sgt. Adam R. Irby of the Surgical Intensive Care Unit (SICU) of the 28th Combat Support Hospital proves this maxim in spades with his new invention: an improvised field warming system for casualties which works three times better than the similar Army-procured device and is made from cardboard boxes and hair dryers. (Thanks to Donald Sensing for the link)

Soldiers wounded in combat or accidents who suffer high blood loss almost always have internal bleeding. Stopping internal bleeding is crucial to save their lives - but the blood loss lowers their temperatures dramatically. And cooler blood does not coagulate to seal internal wounds quickly. Casualties have died from internal bleeding before their bodies could be warmed in the hospital.

Perhaps no longer, though. The standard method of warming patients has been to wrap the in multiple, ordinary blankets and shine heat lamps on them, or use a use a “Bear Hugger” blanket, "which incorporates small ventilation pipes distributing warm air around the patient." But the hospital has not received the special blankets.

So Staff Sgt. Irby constructed a box now known as the "Chief Cuddler."

“I constructed the ‘Chief Cuddler’ out of old cardboard boxes and [Maj. Michael] Greenly’s hair dryer,” Irby said. “It creates a micro-environment of about 105 degrees and will bring a patient from about 90 to 98.6 degrees in about three hours, almost a three-fold decrease in time.”

Analysis: This is truly amazing work by SSG Irby. There's a reason why Army leaders call non-commissioned officers the "backbone of the Army". NCOs are the repository of the warrior ethos, as well as the professional knowledge and technical ability that is necessary to fight on the modern battlefield. You can't take conscripts, train them for a year, and expect them to fight the way that SFC Eversman did in Mogadishu, or do things like SSG Irby. Building NCOs like these takes years, and an incalculable amount of investment in training, education, and leadership development. Borrowing a phrase from the Army's standard award language, SSG Irby's actions reflect great credit upon himself, his unit, and the United States Army.
posted by Phillip Carter at 10:57

 
Sending a message with terror

As Brian Jenkins said so many years ago, "terrorism is theater." The Los Angeles Times captures that point nicely with this article today on the twin suicide bombings in Istanbul which killed dozens and left hundreds wounded. The aim of this attack was clearly not destructive, although it did horiffic damage. It was to communicate the simple message that "we're here, we're still capable, and we're still on the offensive."

By bombing the British Consulate and the headquarters of a Britain-based bank, the attackers served notice on Washington's chief ally in Iraq and other members of its coalition, as well as moderate Islamic countries, that cooperating with the Bush administration is risky — and that the danger extends to the business as well as the diplomatic community.

By pulling off the attacks only five days after twin synagogue bombings in Istanbul, they also demonstrated an audacious tactical prowess. British and Turkish authorities said Thursday's attacks, designed to steal the limelight from President Bush and British Prime Minister Tony Blair in London, appeared to be the work of Al Qaeda or its affiliates in an increasingly decentralized terror network.

"This is very much an attack designed to have maximum public relations impact," said Charles Heyman, a terrorism expert and editor of Jane's World Armies in Britain. "It happened just as Blair and Bush were having their press conference. The terrorists have managed to grab the headlines. They did it very cleverly. It shows they are very aware of media operations. It may have neutralized any positive press in the war on terror that Bush could have had during his visit."

Every Al Qaeda strike resonates with symbolism: target, timing, setting. Thursday's bombings revealed expert planning and multiple layers of meaning.

By hitting the consulate and local headquarters of the HSBC bank, the terrorists struck not only at Britain but at the international financial and diplomatic communities that spread Western influence in the world. Just two or three years ago, Britain seemed an unlikely Al Qaeda target because many Islamic extremists were based in London. However, that was before the Blair government became the United States' most important ally in the invasion of Iraq, analysts said.

"With the attack on Britain, one sees how Iraq now plays a central role in the mentality of terrorism," said Olivier Roy, a senior researcher at the National Center for Scientific Research in Paris.

Analysis: This last point is intriguing, and correct in my opinion. Iraq has become a focal point for international jihadists; a point on the map they can rally towards. From their perspective, Iraq is a place where Western/American/Christian imperialism has squashed a secular Arab state, and is now frustrating the Sunni and Shiite Muslims there from determining their own government and establishing an Islamic state. Iraq provides evidence of our evil for the terrorists to raise money, arms and personnel. It also provides a training ground for terrorists to hone their deadly arts. And it gives them a raison d'etre -- a reason to fight -- by justifying any political violence which might hasten the end of the occupation. I think it's inevitable that such violence will spread to countries beyond the U.S. and Britain, to possibly include our other allies helping with Iraq like South Korea and Poland. More to follow.
posted by Phillip Carter at 08:41

 
An old refrain: too few MPs to go around in America's reserves

Jeff Quinton passes on some news from South Carolina that ought to seem eerily familiar to those who have been following the state of America's military reserves since Sept. 11: too few Military Police units for too many missions. Immediately after Sept. 11, MPs were called up to handle force protection missions everywhere from the Pentagon to the Golden Gate Bridge. Since then, reserve MPs have taken on the Afghanistan MP mission, the Guantanamo Bay mission, and a great deal of the MP mission in Iraq. I can't think of a single MP unit in the reserves that hasn't been mobilized in some way since Sept. 11, along with a few other high-demand specialties like Civil Affairs, Military Intelligence, and Special Forces.
posted by Phillip Carter at 18:58

 
Practicing judo with the Senate Armed Services Committee

The New York Daily News reports that Gen. Peter Schoomaker has effectively learned how to deal with Congress -- agree with them when they criticize the military, and turn the criticism to the Army's own benefit. In a Senate Armed Services Committee hearing, Sen. Hillary Clinton criticized a recent Pentagon study and used the occasion to argue for more pay, more benefits, and more money for Americans who serve and their families. (Not a bad way to get votes, according to this Washington Monthly story) Rather than obfuscate, obscure and tapdance, Gen. Schoomaker took ownership of the problem and did something wholly unexpected -- he agreed with Sen. Clinton.

New York's junior Democrat laid into a Pentagon cost-cutting study that suggests closing dozens of schools and commissaries on bases - and won the support of Gen. Peter Schoomaker, the new Army chief of staff.

"For the life of me, I do not understand this," Clinton said of the study on the viability of schools and the low-cost shops (PXs) for military families.

"This sends the wrong message" in a time of war, and could hurt recruitments and reenlistments by "undermining the quality of life of our soldiers and their families," Clinton said at a Senate Armed Services Committee hearing.

To Clinton's delight, Schoomaker, the former commander of the supersecret Delta Force, was in full agreement.

"It's a great point," Schoomaker told Clinton. "The issue you raise here is central to having the kind of Army we want to have," he said.

"It's absolutely important for this nation" to boost morale with improved benefits for soldiers, Schoomaker said.

Nice job, Gen. Schoomaker. If you can combine your political acumen with your extensive experience as a snakeeater to pry money out of Congress, the Army will be better for it.
posted by Phillip Carter at 18:23

 
Admin note: Just as my college newspaper, the UCLA Daily Bruin, studiously ignored the O.J. Simpson trial while I worked there as a reporter and editor, so too will I studiously ignore Southern California's latest celebrity trial: People v. Michael Jackson. I may comment on the implications this story's prominence has for foreign policy, in that it may push news of Iraq and terrorism off the front pages and TV news shows. But probably not -- I think such stories are best left to Court TV and the tabloid news shows.
posted by Phillip Carter at 18:08

 
Al Qaeda 3.0?
Global terror network evolves into an opportunistic enemy

Peter Bergen, the brilliant journalist who wrote Holy War, Inc., described the evolution of international corporate jihad recently as "Al Qaeda 2.0". A report in today's Los Angeles Times makes me wonder if the enemy has evolved even more, to something beyond what Mr. Bergen has described thus far. Here are the two key parts of the story:

Al Qaeda has always been relatively decentralized and unstructured. But today it moves faster, inciting attacks that require less time, expertise or high-level supervision, said Matthew Levitt, a former FBI analyst and terrorism expert at the Washington Institute for Near East Policy.

"It was always a network of networks whose inner core would wait patiently for three to five years to carry out spectacular attacks," Levitt said. "What's different today is that it's not clear they can conduct attacks with that kind of command and control. So to maintain relevancy, they gave the go-ahead: Do what you can, where you can, when you can. And they are targeting softer targets more frequently."

* * *
The resurgent global menace leads critics to assert that the U.S. military operations in Afghanistan and Iraq have boomeranged by scattering Al Qaeda's forces, making them harder to detect, and inspiring like-minded extremists.

"I think it [U.S. strategy] has backfired," said Alani, of the London defense studies institute. "There is no evidence they can cope effectively with these groups."

On the other hand, some U.S. and European officials see signs of weakness as inexperienced, improvised terrorists turn to soft targets. Even in a diminished condition, Al Qaeda has shown how effectively it can harvest the seeds of hate, said Olivier Roy of the National Center for Scientific Research in Paris.

"It's a movement that functions by franchise," Roy said. "You find a local group like the Casablanca group who exist all over, who are radicalized and controlled by intermediaries. Al Qaeda gives a general attack order, and then it's not really important if the attack is rational. Casablanca was not rational in many aspects…. The real message was in the suicide, not in the targets. It was necessary to strike fear."

Analysis: This is truly a living, breathing, thinking, evolving enemy. Its original form was probably the "Afghan Arab" movement which successfully fought the Soviet invasion of Afghanistan with a composite force of Afghans and Arabs supported by America and others. In the 1990s, this force mutated into the international terror network responsible for the 1996 bombings in Africa, 1998 embassy bombings, 2001 USS Cole attack, and Sept. 11. Over that period, the Al Qaeda network evolved, building redundancy and operational capabilities, building doctrine, and learning lessons from other conflicts. One lesson it learned well was how to survive the eventual Western counter-attack.

The organization had enough redundant operational capability, as well as enough dispersal, to withstand our operations in Afghanistan and continue its operations abroad. The best that can be said is that Al Qaeda has been diminished. It currently appears to lack the ability to conduct "spectactular operations" in the U.S. or Western Europe. But Al Qaeda does not lack the ability to conduct operations abroad, either in Africa, Asia or the Middle East. It appears likely that Al Qaeda has adopted a purposeful operational strategy of "wait and strike where we can." Even pinprick attacks on seemingly insignificant targets can be a big deal for Al Qaeda, because they show the ability to continue the fight even in the face of overwhelming odds.

The tale of David and Goliath is an old one, but it has never lost its ability to inspire the masses. Al Qaeda vs. the United States has became a tale of David and Goliath writ large on the Arab street, and only spectacular successes on our part (which are broadcast by Al-Jazeera) will have any effect on this. To lure more recruits and more donations from sympathetic Arabs around the world, Al Qaeda doesn't have to launch another 9/11-style spectacular operation. They can simply go on, throwing rocks and bombs at insignificant targets while being hunted by American special operations units. Doing so will inspire their followers, which will make them stronger.

At some point in the future, Al Qaeda 3.0 will resume its larger operations, perhaps when we have become complacent or when America can no longer politically justify the exhaustive hunt for Al Qaeda. This enemy has the tactical patience to wait for that moment, and to strike then. Our best counter-measures are psychological. We can never allow ourselves to become complacent, and we must conceptually think of everything as a potential target.

Coda: The original Afghan Arabs may be evolving too, and learning lessons from both the Somalia operation and the current occupation of Iraq. Michael M. Phillips reports in the Wall Street Journal (subscription required) that Afghan insurgents have adopted many of the same disruptive tactics as their Iraqi contemporaries. That is to say, they are striking so-called "soft targets" of opportunity when they can in order to create chaos and inflict casualties. The goal is not to defeat the NATO military operation in Afghanistan, but to destabilize the situation and make it politically untenable for the West to continue its nation-building operations there.

The recent surge in violence, particularly in areas adjoining Pakistan where the Taliban enjoys considerable support, is impeding the international reconstruction effort. Following the assassination of a French staff member, the United Nations refugee agency scaled back its aid operations Tuesday and, for now, shuttered its offices in several southern and southeastern cities. The killing followed a bomb attack on a U.N. vehicle and another on the U.N. offices in Kandahar, the spiritual home of the ousted Taliban regime.

Nine charities working in Afghanistan, including CARE and the International Rescue Committee, say in a report circulated among policymakers that the growing insecurity has delayed, reduced or cut off reconstruction aid for 600,000 Afghans. They and other aid agencies are urging the U.S. and its coalition allies to boost both financial assistance and military forces in Afghanistan, which they fear has taken a backseat to Iraq.

"In most cases the terrorist groups are coming with clear instructions to undermine the reconstruction activities," said Said Tayeb Jawad, the Afghan ambassador to the U.S. and former chief of staff to President Hamid Karzai. "In some instances, there have been clear instructions, for instance, to kill the people working on road projects."

The opposition's hit-and-run tactics are similar to those being used in Iraq, where Saddam Hussein loyalists, foreign extremists and others opposed to the U.S.-led occupation have attacked the International Committee of the Red Cross, the U.N. and private contractors assisting in the reconstruction effort. The aim appears to be to cow the populace by demonstrating the inability of international forces to keep the peace or improve the public's living standards.

Coda II: Citizen (formerly LT) Smash has an illuminating chronology of post-Afghanistan Al Qaeda operations around the world. Note the fact that all are confined to the Arab and Islamic world. Why? Because Al Qaeda has been hobbled -- not dismantled -- by our global war on terrorism. They are limited to opportunistically hitting the soft targets now. Will they rise again? Unfortunately, I think the answer is yes, for some of the reasons discussed in this UN report. Our charge is to be ready for them.
posted by Phillip Carter at 08:53

 
America's new military plans for the world

Bradley Graham reports in the Washington Post about an extremely important strategic/operational development in the Pentagon: the creation of new operational plans for such major theaters as the Middle East and Korea. Unfortunately, news of the sniper's conviction and Arnold's swearing-in pushed this story from page A1 to A18. But I think this is probably the most important story to come out of the Pentagon in weeks. The most important change is that the new operational plans assume America's ability to "do more with less" -- that is, to fight a military campaign with fewer boots on the ground and more airpower/artillery guided by "C4ISR" (command, control, communications, computing, intelligence, surveillance, reconnaissance).

U.S. military commanders, working with the Pentagon's Joint Staff, have revised plans for potential wars on the Korean peninsula, in the Middle East and elsewhere based on assumptions that conflicts could be fought more quickly and with fewer American troops than previously thought, senior officers said.

The changes reflect advances in precision munitions, greater use of Special Operations forces, and improved coordination between air, ground and sea forces tested in the wars in Afghanistan and Iraq. By incorporating these and other new elements in all U.S. war plans, Pentagon authorities hope to make them permanent features and gain greater combat efficiency, the officers said.

Although many specifics remain classified, Defense Secretary Donald H. Rumsfeld has alluded to the revised plans in recent statements, saying they show the Pentagon would be able to deal with other conflicts while U.S. forces stay heavily committed in Iraq and Afghanistan. He has rejected calls from lawmakers and others to increase the overall size of the armed forces.

In the case of a North Korean attack on South Korea, one senior Joint Staff officer said, the new plans would allow the United States to respond without waiting for as many ground forces to arrive, by substituting air power for artillery and getting such critical equipment as counter-battery radars -- for pinpointing enemy mortar and artillery fire -- on scene ahead of the rest of their divisions. The resulting force might not be as "elegant" as planners would like, but "it will certainly be capable," the officer said.

Still, the new planning does not appear to have addressed issues of postwar stabilization and peacekeeping, which in the case of Iraq have imposed huge burdens on the Pentagon that were not foreseen by Rumsfeld and many of his top aides. Instead, it has focused on how to win wars fast.

Analysis: In essence, these changes take the alleged lessons learned from Iraq and incorporate them into updated and revised operational plans. We all watched the way that American firepower and intelligence capabilities worked together in Iraq to defeat the Iraqi army in three weeks. I haven't seen these new operational plans (obviously, they're classified), but I would guess that these plans assume a lower number of infantry, armor and combat-support troops on the ground as well for the mission, either because those troops may be tied up elsewhere (e.g. Iraq) or because there won't be time in future conflicts to deploy them before the balloon goes up.

What's wrong with this plan? Well, I see two glaring areas where the operational plans assume substantial amounts of risk -- at the strategic, operational and tactical levels.

Risk Area 1: Security. The decision to fight a war with less of a ground footprint leaves you with less manpower to protect those things that you do actually put on the ground. Although the initial stages of a war may be fought entirely by airpower, I think it's still true that you must eventually commit ground troops in order to seize, hold or occupy terrain -- or to truly impose your will on an enemy government. As T.R. Fehrenbach said so brilliantly in This Kind of War:

"You may fly over a land forever; you may bomb it, atomize it, pulverize it and wipe it clean of life," wrote Fehrenbach. "But if you desire to defend it, protect it, and keep it for civilization, you must do this on the ground, the way the Roman legions did, by putting your young men into the mud."

This is still true. The problem then becomes one of force protection. Our enemies have learned to hit us asymmetrically because they know that they cannot hope to succeed against the combined-arms effort of American infantry, armor, artillery and air support. Indeed, if Gulf War I and II are any indicator, they will lose thousands of soldiers in any such effort. However, they have also learned from Somalia, Afghanistan and Gulf War II that asymmetric tactics can be highly effective -- particularly against those parts of the American war machine that are less well-protected: supply lines, logistics bases and command posts. Such units are absolutely critical to the American way of war, because our front-line units can't operate without the support of a heavy logistics tail -- and they will be less effective without the assistance of a command post to direct close-air support and artillery, among other force multipliers. Asymmetric attacks on these targets will likely produce American casualties, which in turn will make Americans question the war effort and possibly hasten our withdrawal from any endeavor, according to this theory. They will also reduce our effectiveness and slow our advance.

As we saw recently in Iraq, such attacks will eventually rise to the point where the operational commander must pull front-line troops out of the fight to secure the lines of communication and critical American high-value assets. The asset requirements for force protection will sap combat power from the fight, where it's needed. And if the decision was made before the fight to deploy less troops to the theater, it's often too late during the fight to get them there, since American units typically require weeks to deploy anything heavier than a paratroop battalion to war. If this problem grows bad enough, it will necessitate an operational pause. But at that point, the whole point of moving fast and light is lost, and you should've just deployed enough troops when you had the chance.

Risk Area 2: Troops to Secure the Peace. As this article states, the new operational plans don't fully consider the post-war requirements in each respective theater of operation. In Iraq, those post-war requirements were assumed away too, according to excellent reports in the Los Angeles Times and the Washington Post, among other sources. The result was a hasty effort to secure the peace in the immediate aftermath of the war, compounded by a lack of resources (boots on the ground) to do the job in April and May. The result was chaos. If there is one lesson that operational planners (and I've been one) should take away from Iraq, it is this: don't assume the post-war phase of the operation out of the planning process. You simply can't afford to assume a d*mn thing when it comes to planning, and failing to plan such a major part of the operation is planning for failure. The post-war phase in Iraq is turning out to be far more important, far more costly, and far more lengthy than the war itself.

But that's always been the case. In every war we have fought since WWII, the ends have been messy. After WWII, we had to occupy Germany and Japan for years. We're still in Korea, although the nation-building efforts were largely complete by 1960. Vietnam ended quite messily, though we're now returning there to rebuild the nation's economy with the foot soldiers of capitalism. Somalia, Bosnia, Haiti, Kosovo, Afghanistan, Rwanda, East Timor -- every recent nation-building op has shown that it takes more troops to secure the peace than to win the war (or change the regime, if that's the case). I made this point in May in the Washington Monthly, and Amb. James Dobbins made it more elegantly in the RAND study America's Role in Nation-Building: From Germany to Iraq.

If you commit less troops to the fight, then you will have less troops on the ground at the moment the mission changes from war to post-war stabilization. Moreover, America lacks the strategic-lift (think Air Force cargo plane) capability and rapid-deployment (think 82nd Airborne) capability to rapidly get troops to the battlefield in the time it will take to affect the situation on the ground. In Iraq, the situation deterioriated in a matter of days, and even if we had made the decision on 9 Apr 03 to deploy additional forces, it would've taken weeks to get them there. The pre-war decision to commit less troops to battle has profound post-war implications, and these operational plans appear to miss that point.

I don't think these are necessarily fatal flaws. The combatant commands (e.g. CENTCOM) can scrub these plans, generate their own requirements, and request more resources for operations when the order is given. But they really don't have the resources -- or the asset visibility -- to do so as effectively as the Joint Staff and the service staffs (e.g. Army and Navy). Plus, they will be under significant time pressure to execute the mission, and it will be hard to request more resources if and when the balloon goes up in a place like Korea. The right answer would be to incorporate the real lessons learned from Iraq into these operational plans. History has shown us that winning the peace is often more difficult than winning the war, and we should plan for that. Depending on your perspective, such an event may be a contingency or an eventuality. But a good planner plans for both.
posted by Phillip Carter at 09:43

 
Novices at nation building

Stanford Professor Stephen Krasner writes in today's Los Angeles Times that American difficulties in Afghanistan and Iraq should come as no surprise to observers around the world, because frankly, America and the world lacks experience in building democracies.

What we do know — or should know — is that getting from here to there will be hard. The states we're most interested in helping to transform today generally have low per-capita incomes, limited experience with democracy and long histories of autocratic and sometimes brutal rule. These are not conditions that tend to foster democracy.

Among the surprisingly few things we know about creating democracies is this: While it doesn't necessarily take higher per-capita income to establish a democracy, it certainly helps in sustaining it. No democratic country with per-capita income above $6,000 has ever reverted to autocracy.

We also know that democratic transitions are dangerous. Autocratic leaders feeling threatened by democratic reforms can respond by cracking down. A destructive sort of nationalism can surface (think Kaiser Wilhelm II before World War I, Slobodan Milosevic in the 1990s or Zimbabwe's Robert Mugabe today). And states in transition are more likely than either stable democracies or autocracies to become involved in wars.

Foreign occupation, even when accompanied by large amounts of money, does not guarantee a smooth transition to democracy. Since the Dayton accords of December 1995, Bosnia has effectively been under the control of the international community, led by Europe. Aid has flowed freely: In the late 1990s, foreign assistance amounted to a quarter of the country's gross national income. While this international effort has kept the lid on a volatile situation, it has hardly set Bosnia on a clear path toward democratic autonomy. The situation in Kosovo, which in 1999 became a de facto NATO protectorate, is no better.

The simple fact is that we do not know how to do democracy-building. We do not have clear historical precedents. Germany and Japan after World War II demonstrated that an extensive, sustained American presence can contribute to the establishment of stable democracies. But in 1945, Germany and Japan were countries with more wealth, better-educated populations and more experience with democracy than the countries with which America is now engaged.

In other countries where we have attempted regime change, results have been mixed. Over the last century, the United States has intervened both covertly and overtly in the Caribbean and Central America. But we have not done nearly as well as we would have liked in leaving successful democracies and market economies in our wake.

Analysis: I think this is a powerful argument, and one that's not without a shred of truth. I suppose it's debatable whether democracy should emerge first -- and set the conditions for a liberal society -- or whether the liberal society and market economy must come first. In many ways, it's a classic chicken/egg problem. I happen to think that the market economy, infrastructure, and educational systems must come first in order to set the conditions for the emergence of democracy. You have to build a class of educated persons with a personal economic incentive to become stakeholders in society; to defend what they have acquired by means of civil government. Towards that end, America can create the conditions for the emergence of democracy in Iraq by building roads, schools, markets, hospitals, and other institutions to help Iraqi society reestablish itself. Self-determination will take over at that point, and while we may not get the government we want, I think that the Iraqi people ought to be trusted to decide their own destiny.
posted by Phillip Carter at 18:38

 
"A citizen check on war"
Active/reserve mix in American military effectively checks the President's war powers

Former Air Force pilot Janine Davidson has a well written essay in today's Washington Post Outlook section on the "total force" concept, which is the term of art to describe the mix of active and reserve forces in today's American military. Ms. Davidson lays out the history behind this concept, and the way this concept has developed into a check on Presidential warmaking and deployment power.

The current U.S. military structure -- known as the "Total Force" -- was implemented after the Vietnam War. The system was designed to require activation of Guard and reserves personnel in order to wage war. Defense officials ensured that war-fighting capabilities were integrated across the active and reserves components to such a degree that, as an Army chief of staff, Gen. Creighton Abrams, is said to have claimed, "they're not taking us to war again without calling up the reserves."

Abrams and others recognized that when reservists are mobilized, whole communities are affected to a much greater degree than when a draft is conducted of only young eligible men. Their primary concern was that when reservists went to war, troops serving abroad would have more support "back home."

But the Total Force had another goal as well -- to act as a check on indiscriminate or capricious uses of military force. Recent experience in the Balkans and the Middle East demonstrates that it is easier to send troops abroad than it is to bring them home. And history shows that Congress rarely has acted against a president to limit the use of force. Thus, the Total Force was designed to compel Congress to scrutinize military operations. As employers give up workers and as families say goodbye to soldiers augmenting active forces, Congress should be pressured by constituents to act. In sum, the sacrifices of waging war -- or even keeping peace -- are supposed to spread throughout our democratic society to such a degree that our elected officials are forced to debate the wisdom of sending troops abroad.

Analysis: Indeed, Gen. Creighton Abrams' total force concept has become a more effective check on presidential warmaking ability than either the Art. I power of Congress to declare war, or the potentially unconstitutional War Powers Act. This check works because it's closely tied to the Art. I power of Congress to fund the military. Mobilization decisions also require political capital, and even in this gerrymandered age of safe Congressional seats, decisions to send large numbers of Americans into harm's way translates into lots of political pressure on Congress to manage those deployments.

On the other hand, this force balance effectively ties the SecDef's arm behind his back, because it limits his ability to deploy certain critical units such as Civil Affairs, Military Police, Military Intelligence and logistics. And, America's reserve system was designed for a WWIII-style scenario where the entire nation would mobilize to fight the Soviet hordes as they streamed through the Fulda Gap. It does not work well for the constant level of peacekeeping deployments we had in the 1990s, and it is about to break down from the strain of repeated, long-term deployments to support the Global War on Terrorism. There is a good argument for moving some of the most critical units into the active force, such as Civil Affairs, at least in sufficient numbers to give America a 9-1-1 capability in these specialties.
posted by Phillip Carter at 18:26

 
The travels of LCPL David C. Botti

Sunday's New York Times carries an exceptional personal essay from David Botti, a Marine reserve infantryman who was mobilized first for post-9/11 security and later for combat duty in Iraq. LCPL Botti answered the call both times, taking himself away from his nascent writing career and dreams of living in New York City. But he took his journal with him to war, and captured a number of the stories of his comrades while deployed. The result, I hope, will eventually be some sort of war memoir (or work of fiction) that accurately characterizes the experiences of Marines in Iraq. His essay today marks his journey from New York to Iraq and back again to the big city.

The August night I returned to the city from Iraq, I found myself drunk in the bathroom of an East Village bar. As I steadied the wall, I wondered how this skin of mine, tanned brown from the Iraqi sun, could now soak up the atmosphere of a good, seedy city bar. Wondered how the people in line behind me could enjoy the night while their peers still slept with rifles, halfway around the world, where I had been just the week before.

I wandered back to my friends, and drifted out of the conversation as soon as I sat down. It was easy to leave the city once more, relive the past four months in the time it took for the next round to arrive. No one spoke to me. Perhaps my silence betrayed my thoughts; I was glad to be left alone. But at that moment I was not having flashbacks, or letting alcohol numb grief and pain. There was no nervous tick or trembling hands. My thoughts, my reverie, lay with the people I had known in Iraq, the soldiers and citizens still dealing with the violent reality.

As the fighting unexpectedly intensifies in Iraq, as the American body count rises, each headline strikes deeper, and I can still see it, still feel it: walking through a foreign city, looking to the rooftops, the windows, in alleys, behind me, in front, to the sides. One person thanks you for freedom, and the next stares through you as if you are already a ghost.

It is a forceful process, ingesting the news and carrying it with me through the day. There are moments when I want the rifle back in my hand, so I can return to Iraq and remain there, until the war ends in a solid conclusion. There is still a reluctance to forget my initial, unwavering idealism that leaving Iraq meant that things were improving, and that others would soon be following me home.

But sometimes, it's New York that feels like a foreign city. One night, in another bar, I read a note posted by the staff above the urinal that ridiculed the city's smoking ban and urged patrons to send Mayor Bloomberg hate mail in an attempt to change the law.

This was the city I had returned to: outspoken and opinionated, the center of freethinking. I want the inspiration and nurturing that New York can give young writers. I am not ashamed of my service, but am conscious that my past might overshadow what I want to accomplish. As my friends and I headed home from that Village bar last August, I allowed myself respite from the guilt of being safe and happy. I watched the blocks pass with the hopeful feeling that soon the city would cease to feel new again.

posted by Phillip Carter at 10:05