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

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The men of Charlie Company

Ron Martz, who went to war as an embedded journalist with the 3rd Infantry Division, has a great series in today's Atlanta Journal-Constitution on the men of Charlie Company, 1-64 Armor, and their experiences since coming home from the war in Iraq. The series also includes Mr. Martz' articles from Iraq. These two series are some of the best war reporting I've seen, right up there with John Burns (NYT), Rick Atkinson and William Branigin (WP), and David Zucchino (LAT). Great job -- definitely worth a read.
posted by Phillip Carter at 08:29

 
Army re-adopts stop loss
Policy prevents discharges, reassignments; breeds resentment

The Washington Post reports this morning that the Army has reinstituted a policy known as "stop loss", whereby soldiers with discharge or retirement plans are kept in the service by force of law. The policy is intended to help the Army keep key people at a critical time, such as those assigned to a unit on the deployment list for Iraq. But when applied, it causes great resentment among soldiers and families, who feel as if the government reneged on its enlistment contract.

Chief Warrant Officer Ronald Eagle, an expert on enemy targeting, served 20 years in the military -- 10 years of active duty in the Air Force, another 10 in the West Virginia National Guard. Then he decided enough was enough. He owned a promising new aircraft-maintenance business, and it needed his attention. His retirement date was set for last February.

Staff Sgt. Justin Fontaine, a generator mechanic, enrolled in the Massachusetts National Guard out of high school and served nearly nine years. In preparation for his exit date last March, he turned in his field gear -- his rucksack and web belt, his uniforms and canteen.

Staff Sgt. Peter G. Costas, an interrogator in an intelligence unit, joined the Army Reserve in 1991, extended his enlistment in 1999 and then re-upped for three years in 2000. Costas, a U.S. Border Patrol officer in Texas, was due to retire from the reserves in last May.

According to their contracts, expectations and desires, all three soldiers should have been civilians by now. But Fontaine and Costas are currently serving in Iraq, and Eagle has just been deployed. On their Army paychecks, the expiration date of their military service is now listed sometime after 2030 -- the payroll computer's way of saying, "Who knows?"

The three are among thousands of soldiers forbidden to leave military service under the Army's "stop-loss" orders, intended to stanch the seepage of troops, through retirement and discharge, from a military stretched thin by its burgeoning overseas missions.

"It reflects the fact that the military is too small, which nobody wants to admit," said Charles Moskos of Northwestern University, a leading military sociologist.

To the Pentagon, stop-loss orders are a finger in the dike -- a tool to halt the hemorrhage of personnel, and maximize cohesion and experience, for units in the field in Iraq, Afghanistan and elsewhere. Through a series of stop-loss orders, the Army alone has blocked the possible retirements and departures of more than 40,000 soldiers, about 16,000 of them National Guard and reserve members who were eligible to leave the service this year. Hundreds more in the Air Force, Navy and Marines were briefly blocked from retiring or departing the military at some point this year.

By prohibiting soldiers and officers from leaving the service at retirement or the expiration of their contracts, military leaders have breached the Army's manpower limit of 480,000 troops, a ceiling set by Congress. In testimony before the Senate Armed Services Committee last month, Gen. Peter Schoomaker, the Army chief of staff, disclosed that the number of active-duty soldiers has crept over the congressionally authorized maximum by 20,000 and now registered 500,000 as a result of stop-loss orders. Several lawmakers questioned the legality of exceeding the limit by so much.

Analysis: First, a note on these numbers. The Army's "end strength" is capped as a matter of law. Congress authorizes a certain number of soldiers for each service in each year's National Defense Authorization Act. It is illegal for the Pentagon to go over that number, although there are many loopholes. The Army is currently over its end-strength authorization, but that's just half the story. When you include the 155,000+ Army reservists and guardsmen now activated, you get a number closer to 650,000. That's significantly more than the Army's end strength number. Since 9/11, the Army has had tens of thousands of reservists mobilized at any given time. So in reality, the story is much bigger than what the Post is reporting.

Today's Army is stretched to the limit, with more than half of its strength committed to this rotation in Iraq or the next one. "Stop loss" enables the Army to more easily manage its personnel for the Iraq mission, which has placed an immense burden on the Army's personnel system. It's hard to stress just how hard this has been for the military to manage, what with the second and third-order effects on schools, unit manning, retirements, etc. The close cousin of stop-loss, "stop move", has also been put into play. That keeps soldiers in specific units, even if they were slated to be reassigned. This has been used to keep certain units together, such as those now training for deployment to Iraq. Ironically, the two policies have created a de facto system of unit manning, which in many cases has led to better units on the ground in Iraq with more unit cohesion than they might have without stop-loss and stop-move in place.

I think stop loss can be a good tool, but it can also be abused. It's one thing to predict how many new privates you need for a given mission. Recruiting and producing those is comparitively easy, because you can do so with your existing training base -- just a ramp up in production numbers. But you can't produce mid-level sergeants and officers in the same way, nor can you produce the kind of specialized soldiers (e.g. Military Police, Civil Affairs, Special Forces, MI linguists, etc) now needed in Iraq and Afghanistan. Producing those soldiers takes years, and it would have been practically impossible to forecast the needs for those 5-10 years ago in order to have enough of them right now.

If I were in the Army's shop for Manpower & Reserve Affairs, I'd be very judicious about the way I used "stop loss" and "stop move". Each of these devices is a good short-term fix, but it creates enormous secondary and tertiary problems for the Army. As the Post's article says, soldiers often decide to get out because of heavy-handed policies like this, and the Army may create another exodus of mid-level talent (circa 1999-2001) if it uses these tools too much. This will hurt the reserves the most, I think, because those soldiers face the most turbulent change when they're mobilized and deployed (vice active-duty soldiers who don't have to leave their jobs). And we have a lot of reservists involved in this mission -- so many, in fact, that many state governors are concerned their National Guards lack the domestic capacity to respond to disasters and other state missions.

Bottom Line: The Army can't afford to just manage its personnel in order to fight this war. It must manage its personnel well enough to leave the Army ready to fight the next war, wherever that may be. One captain in the Army's personnel headquarters told me recently that a general officer bellowed "We're at war -- nothing else matters" to his staff when they brought up some of these long-term issues. That kind of thinking won't work for the Army if it wants to be ready for the next war. It must consider the long-term effects of its current policies on its personnel, or else there won't be a trained and ready Army for the next war.
posted by Phillip Carter at 08:17

 
Is anthrax still a threat?
Judge halts military vaccination program, while experts say the bug still threaten the civilian population

Thankfully, it's been a while since bacillus anthracis dominated the news. But this week, U.S. District Judge Emmet Sullivan enjoined the American military from inoculating its personnel against anthrax, saying that the President had not signed a special finding necessary to require mandatory inoculations. (Full disclosure: I got the anthrax vaccine in 1998 and I think it's perfectly safe.) The essence of the case was a challenge to the military's mandatory inoculation policy, which was improper given the lack of a full FDA license for the vaccine.

In blocking mandatory anthrax inoculations until a full trial can be held on the matter, U.S. District Judge Emmet G. Sullivan agreed with the contention by six unnamed Defense Department plaintiffs that the anthrax vaccine is an experimental drug "being used for an unapproved purpose" -- namely, for exposure to airborne anthrax as well as exposure through the skin. As such, he ruled, it cannot under federal law be administered to service members on a mandatory basis.

Sullivan said he was not persuaded by arguments from Pentagon lawyers that administering the vaccine on a voluntary basis would interfere with military operations in Iraq and elsewhere. But if they believe that is the case, the judge said, federal law gives them the option of obtaining a presidential waiver of service members' right to informed consent. Such a waiver, Sullivan wrote, "would be an expeditious end to this controversy."

Sullivan's ruling comes with more than 800,000 U.S. troops having received the vaccine since 1998. Many of them received the vaccine -- a series of six injections -- last year, before deploying to fight the war in Iraq.

The next day, the Pentagon fired back at Judge Sullivan with a press conference on the safety and necessity of the anthrax vaccine. The Justice Department, on behalf of the Pentagon, has also filed a motion to clarify the judge's ruling on procedural grounds. If successful, the Pentagon could limit the ruling to just the six plaintiffs in the case, because a formal plaintiff class was not certified in accordance with the Federal Rules of Civil Procedure.

. . . at a Pentagon briefing called to rebut Sullivan's findings, William Winkenwerder Jr., assistant secretary of defense for health affairs, took strong exception to Sullivan's finding that troops receiving the anthrax vaccine were being used as "guinea pigs."

* * *
Winkenwerder noted that a March 2002 study by the National Academy of Sciences' Institute of Medicine concluded that the vaccine is effective "for the protection of humans against anthrax, including inhalation anthrax, caused by all known or plausible engineered strains of Bacillus anthracis."

* * *
Winkenwerder said that most of those who refused the vaccine did so in the early stages of the program, in 1998 and 1999, and that only 10 have refused it since the program accelerated this summer. "Our most recent experience in the last two years is that our service members support the vaccine program and accept it, and our refusal rate is very, very, very small."

In his order, Sullivan noted that the Pentagon recently updated the "adverse reaction rate" associated with the anthrax vaccine from 0.2 percent to 5 percent to 35 percent.

Army Col. John D. Grabenstein, who helps administer the anthrax vaccine program and appeared with Winkenwerder, said adverse reaction rates of 5 percent to 35 percent are comparable to those of other vaccines and flu shots, typically indicating nothing more than headaches or swelling at the injection site on a patient's skin.

"These are not scary numbers," he said.

And in Sunday's New York Times, we have an article by Judith Miller, co-author of Germs, on the continuing danger posed by anthrax to the American population. Ms. Miller's reporting on WMD in Iraq has been criticized lately for a variety of reasons, but I've found her writing on biological warfare generally to be quite good. Here's what she has to say:

One indication of concern was a secret cabinet-level "tabletop" exercise conducted last month that simulated the simultaneous release of anthrax in different types of aerosols in several American cities.

The drill, code named Scarlet Cloud, found that the country was better able to detect an anthrax attack than it was two years ago, said officials knowledgeable about the exercise. But they said the exercise also showed that antibiotics in some cities could not be distributed and administered quickly enough and that a widespread attack could kill thousands. "The exercise was designed to be very stressful to the system, and it was," a senior government official said.

Veterans of America's biological warfare program of the 1950's and 1960's said the recent recognition of the ability of anthrax to spread widely appeared to be in line with research conducted decades ago and remains secret.

"The new generation of biological and chemical experts is simply unfamiliar with the earlier studies," said William C. Patrick III, a former head of product development at Fort Detrick, Md., then the military's center for developing germ weapons.

Another factor fueling concern about anthrax is the questioning of senior Qaeda agents now in United States custody, administration officials said.

One official said that after his arrest in March, Khalid Shaikh Mohammed, one of Osama bin Laden's top lieutenants, confirmed to American officials earlier reports that Al Qaeda, and particularly its second in command, Ayman al-Zawahiri, a physician, had long been eager to acquire biological agents, particularly anthrax. The official noted that Qaeda agents had inquired about renting crop-dusters to spread pathogens, especially anthrax.

* * *
The drill was an effort to follow up on weaknesses in federal emergency response plans identified in a simulated bioterrorism attack. That exercise, called Top Off 2, was organized by the Department of Homeland Security and involved 8,000 local, state, and federal officials. It simulated a radiological attack on Seattle and a pneumonic plague attack on Chicago.

The weeklong exercise showed that the government needed to improve plans for delivering vaccines and antibiotics to those exposed to a deadly agent, administration officials said. It also demonstrated that the government needed better plans for controlling and monitoring the movement of potentially contaminated produce and people in such an emergency, officials said.

* * *
But it also pointed up the problems in rapid distribution of medicine that could counteract anthrax exposure and showed that the government had enormous difficulties stopping the spread of contamination through the country and into Canada.

Analysis: Anthrax, and bioterrorism, is probably still a threat to the American population. To the extent that we will deploy our military against enemies who have anthrax in their arsenal, it's still a threat to our military. Collectively, I think we've forgotten how big of a threat exists from biological and chemical terrorism. These weapons are all too easy to make and deploy, and we don't have the best tools in place to counteract them. I think we've invested an awful lot in making our airports and airplanes safe against the last attack, but that enormous outlay of resources was probably wasted. Instead, I think we should have concentrated more resources against this next threat, and the various means (detection, vaccination, treatment, etc) for defeating it.

12/31 Update: The New York Times reports that the FDA has approved the anthrax vaccine used by the military for use against inhaled anthrax, with language that's clearly directed to persuade Judge Sullivan to lift his injunction.
posted by Phillip Carter at 05:34

 
Combat or crime?
Which paradigm should apply in the war on terror?

Kenneth Roth, executive director of Human Rights Watch, poses this question and others in an essay which appears in the Jan/Feb 2004 edition of Foreign Affairs. Mr. Roth argues that America has waged a metaphorical war on terrorism without necessarily meeting all of the requirements for such a war, and that we have abused many domestic and international norms of law in the process. Mr. Roth's argument is the latest in a chorus of such arguments from legal scholars such as Laurence Tribe, David Cole, and Kathleen Sullivan. Here's a brief excerpt from the piece:

What are the boundaries of the Bush administration's "war on terrorism?" The recent battles fought against the Afghan and Iraqi governments were classic wars between organized military forces. But President George W. Bush has suggested that his campaign against terrorism goes beyond such conflicts; he said on September 29, 2001, "Our war on terror will be much broader than the battlefields and beachheads of the past. The war will be fought wherever terrorists hide, or run, or plan."

This language stretches the meaning of the word "war." If Washington means "war" metaphorically, as when it speaks about a "war" on drugs, the rhetoric would be uncontroversial, a mere hortatory device intended to rally support for an important cause. Bush, however, seems to think of the war on terrorism quite literally -- as a real war -- and this concept has worrisome implications. The rules that bind governments are much looser during wartime than in times of peace. The Bush administration has used war rhetoric precisely to give itself the extraordinary powers enjoyed by a wartime government to detain or even kill suspects without trial. In the process, the administration may have made it easier for itself to detain or eliminate suspects. But it has also threatened the most basic due process rights.

By literalizing its "war" on terror, the Bush administration has broken down the distinction between what is permissible in times of peace and what can be condoned during a war. In peacetime, governments are bound by strict rules of law enforcement. Police can use lethal force only if necessary to meet an imminent threat of death or serious bodily injury. Once a suspect is detained, he or she must be charged and tried. These requirements -- what one can call "law-enforcement rules" -- are codified in international human rights law.

In times of war, law-enforcement rules are supplemented by a more permissive set of rules: namely, international humanitarian law, which governs conduct during armed conflict. Under such "war rules," unlike during peacetime, an enemy combatant can be shot without warning (unless he or she is incapacitated, in custody, or trying to surrender), regardless of any imminent threat. If a combatant is captured, he or she can be held in custody until the end of the conflict, without any trial.

* * *
The United States should not lightly suspend due process rights, as the Bush administration has done with its "enemy combatants" -- particularly when a mistake could result in death or lengthy detention without charge or trial. Law-enforcement rules should presumptively apply to all suspects in the "war" on terror, and the burden should fall on those who want to invoke war rules to demonstrate that they are necessary and appropriate.

The best way to determine if war rules should apply would be through a three-part test. To invoke war rules, Washington should have to prove, first, that an organized group is directing repeated acts of violence against the United States, its citizens, or its interests with sufficient intensity that it can be fairly recognized as an armed conflict; second, that the suspect is an active member of an opposing armed force or is an active participant in the violence; and, third, that law enforcement means are unavailable.

Within the United States, the third requirement would be nearly impossible to satisfy -- as it should be. Given the ambiguities of terrorism, we should be guided more by Milligan's affirmation of the rule of law than by Quirin's exception to it. Outside the United States, Washington should never resort to war rules away from a traditional battlefield if local authorities can and are willing to arrest and deliver a suspect to an independent tribunal -- regardless of how the tribunal then rules. War rules should be used in such cases only when no law-enforcement system exists (and the other conditions of war are present), not when the rule of law happens to produce inconvenient results. Even if military forces are used to make an arrest in such cases, law-enforcement rules can still apply; only when attempting an arrest is too dangerous should war rules be countenanced.

Analysis: Mr. Roth states his case well, but I disagree with some of the fundamental assumptions and linkages in his argument. I also disagree with his conclusions, including his three-part test for determining if the laws of war apply.

Here is my response to Mr. Roth's argument (I apologize for the length):

(1) "[President Bush's] language stretches the meaning of the word 'war.'" I don't think so. Historically, "war" has denoted and connoted a broad range of circumstances, from a latent state of war between hostile empires, a particular campaign, or a particular engagement. The word is imprecise because states have waged war in different forms throughout history. In addition to referring to different levels of intensity, "war" refers to different types of conflict -- from wars waged on other states to wars waged on movements. Today, our enemies have declared war on us. (See Al Qaeda's 1998 declaration of holy war against the United States.) Theoretically and practically, it is possible that a state of war exists between the United States and Al Qaeda. But that's really not even required, for as Mr. Roth acknowledges, the laws of war only require that a state of "armed conflict" exist.

The real question is whether a state of armed conflict (or war) can exist between a state (the U.S.) and a non-state actor (Al Qaeda). That's a theoretical question that international lawyers have been puzzling over for some time. Mr. Roth makes a conclusory argument that Al Qaeda's actors look more like criminals, therefore we can't fight a war against this group. I'm not so sure. I think we now face a 4th Generation adversary that disdains the contemporary norms of international relations, and considers definitions like "state" to be irrelevant facets of Western-dominated international law. Whether we label Al Qaeda as a criminal enterprise or warmaking entity, we're pounding a square peg into a round hole. But if we label them a criminal enterprise, then we limit ourselves to the tools of law -- not war. To effectively fight Al Qaeda, we need a multi-faceted approach which incorporates legal, financial, military and intelligence tools. Therefore, we must wage a "war" against this group that enables us to bring those tools to bear.

(2) "In peacetime, governments are bound by strict rules of law enforcement. . . . In times of war, law-enforcement rules are supplemented by a more permissive set of rules: namely, international humanitarian law, which governs conduct during armed conflict." This is a false dichotomy. It uses time as the independent variable to determine which set of rules should apply. First, peace and war are not mutually exclusive -- they can occur simultaneously. Second, peace and war are not binary options, and they never have been. I conceptualize of peace and war as a continuum, which includes various forms of peace and war that blur in the middle. Somewhere in that blurry middle, we can place terrorism, although certain terrorist acts fall closer to the peace end (e.g. kidnapping for ransom) or the war end (e.g. the 9/11 attacks) of the continuum.

Mr. Roth's false dichotomy infects the rest of his argument. His basic argument is that America is not at war, therefore, we should apply the rules of peacetime law enforcement to the conflict. That doesn't pass the common sense test, let alone the intellectual rigor that I would expect from an article in Foreign Affairs. Some legal scholars might say that only a "state of war" can trigger the laws of war, but the international consensus says otherwise. Presumably, Mr. Roth falls into this group. But the international legal consensus is that a de facto state of "armed conflict" triggers the laws of war, not a de jure state of "war." Armed conflict is defined in functional terms, unlike a state of war which is triggered by a formal state of belligerency between two states. It is possible to define peace and war in temporal terms, geographical terms, and situational terms. I wish things were as black and white as Mr. Roth's argument, and that we could easily put things in their "war" and "peace" cubbyhole. But we can't -- we need to adapt rules and norms to fit the gray area that we now find ourselves in: somewhere in between war and peace.

(3) "If law-enforcement rules are used, a mistaken arrest can be rectified at trial. But if war rules apply, the government is never obliged to prove a suspect's guilt. Instead, a supposed terrorist can be held for however long it takes to win the "war" against terrorism. . . . Washington must also remember that its conduct sets an example for governments around the world. " I'm not so sure this argument works. It is important to retain the moral high ground in our war on terrorism. To do so, we must fight according to the laws of war and act in accordance with the U.S. Constitution. But nowhere does the law of war or the U.S. Constitution restrict the ability of the President to fight a just war with just means. To do so would transform both documents into a suicide pact, to use Justice Robert Jackson's oft-cited phrase. The law of war does not strip a state of its sovereign right to fight a war in self-defense, nor does the Constitution do so. Instead, these sources of law constrain the President's abilility to fight a war.

Congress granted the President legal authority after the 9/11 attacks in Public Law 107-40 to wage war against Al Qaeda; it also granted the President the legal authority to wage war on Iraq in Public Law 107-243. Congress has subsequently ratified its grant of power by funding the President's military, legal, financial and intelligence operations. Both the U.N. and NATO blessed the U.S. response to the 9/11 attacks, although some debate exists as to the extent or scope of those authorities.

However, there may be some things we can do better to maintain the moral high ground, and here I think Mr. Roth has a point. Right or wrong, America's treatment of prisoners at Guantanamo Bay has earned the scorn of the international human rights community, as well as most of Europe. America ought to do some things better there, like hold Art. V tribunals for the detainees to decide the issue of formal POW status. Our national decision to ignore the UN Security Council to wage war on Iraq has also earned us scorn from various quarters of the world. This may have been the right decision, but we must recognize that pressing forward in Iraq without UN sanction had a cost in terms of international prestige and legal legitimacy. Terrorism experts such as Rohan Gunaratna, Bruce Hoffman, Ian Lesser, and others have stressed the importance of a global coalition for the global war on terror. Unlike a nation-state, we can only defeat this threat with support from abroad, because it takes such support to track down Al Qaeda's leaders, cripple its finances, hinder its travel, and dismantle its organization. We must hold the moral high ground in order to maintain this support from our allies.

(4) Roth makes several arguments with respect to the detention of enemy combatants, and tries to say that Ex Parte Quirin should not apply to the cases of Hamdi, Padilla and al-Marri who are now being held as such.

- "First, the saboteurs in Quirin were agents of a government -- Germany's -- with which the United States was obviously at war. Whether the United States is actually at "war" with al Qaeda, however, remains uncertain under the law." Maybe... but I think it's pretty clear that we're in a state of armed conflict right now. A formal declaration of war is not necessary for a state of armed conflict, and a state of armed conflict is what is necessary for the laws of war to come into play. Combatant commanders have detained enemy soldiers as prisoners since the classical era, although prisoners were often executed or enslaved in ancient times. Chivalric codes changed this norm somewhat during the middle ages, although prisoners' fates often depended on their rank or class. In the modern era, the law of war has established rules for the capture and treatment of prisoners. But no one has suggested that a combat commander should not have the right to take prisoners, nor has anyone extrapolated that a nation should not be allowed to take prisoners in wartime.

- "Second, although the Court in Quirin defined a combatant as anyone operating with hostile intent behind military lines, the case has arguably been superseded by the 1949 Geneva Conventions (ratified by the United States), which, as noted above, rule that people are combatants only if they either are members of an enemy's armed force or are taking active part in hostilities." This misstates both the holding of Quirin with respect to enemy combatants and the definition of the Geneva Convention, found in Art. IV. In Quirin, the Court distinguishes between lawful combatants and unlawful combatants at page 31:

By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals. See Winthrop, Military Law, 2d Ed., pp. 1196-1197, 1219-1221; Instructions for the Government of Armies of the United States in the Field, approved by the President, General Order No. 100, April 24, 1863, sections IV and V.

So Quirin didn't just limit its definition to those who operated with hostile intent behind military lines -- it defined an unlawful enemy combatant as one who did not obey the laws of war. Arguably, a terrorist who deliberately targets non-combatants for a political purpose is violating the laws of war. Also, I think you can analogize Jose Padilla to the German saboteurs in Quirin. Padilla sought to secretly reconnoiter U.S. targets for an Al Qaeda attack using a radiological dispersal device (aka "dirty bomb"). The German saboteurs sought to secretly reconnoiter and destroy various sites on the East Coast. Both disguised themselves as civilians; both sought to target non-combatants; both used their U.S. citizenship and language abilities to blend into the population. It's an imperfect analogy, but a good one in my opinion.

Second, Mr. Roth misstates the 3rd Geneva Convention's definition of a combatant. Art. IV contains several different definitions for a combatant, from members of regular armed forces to members of militias to members of civil defense groups. It's possible here that his editors forced him to oversimply his argument, but the result is an argument that's legally incorrect. Membership in an armed force or active participation in hostilities are part of the GC's Art. IV definition of a combatant -- but there's much more. Membership in a militia group can also make you a combatant; so can passive participation in hostilities, or limited participation. Moreover, the two parts don't have to occur simultaneously. A soldier is a lawful combatant (and therefore a lawful target) whether or not he's actively engaged in hostilities. Mr. Roth's argument only works if he can limit the definition of a combatant to a narrow group. Unfortunately, international law and custom defines a combatant as something much broader.

- "Moreover, Quirin only establishes who can be tried before a military tribunal. The Bush administration, however, has asserted that it has the right to hold Padilla, al-Marri, and other detained 'combatants' without a trial of any kind -- in effect, precluding serious independent assessment of the grounds for potentially lifelong detention." You can't have it both ways, Mr. Roth. At times, your organization and others have criticized the Bush Administration for its 13 Nov 01 order authorizing military tribunals, saying that such tribunals violate international law and U.S. law. Now, you say that Quirin only authorized the U.S. to hold military tribunals, and that such tribunals might be a better alternative to detention for Mr. Padilla and his enemy combatant brethren. Which one is it? I think that Quirin actually opines on both matters -- the definition of a combatant, and the proper disposition (military tribunal and execution) for such. I think it's still unclear whether the U.S. can apply Quirin to the facts of today's combatants, and use Quirin to support military tribunals and executions in these cases. But I'm surprised that Human Rights Watch is so willing to endorse the holding of Quirin.

- "Finally, whereas the government in Quirin was operating under a specific grant of authority from Congress, the Bush administration has acted on its own in taking the difficult decision to treat Padilla and al-Marri as combatants, without allowing the popular input that a legislative debate would provide." In December 1941, Congress declared war on Japan, Germany and Italy. In September 2001, Congress authorized the President to use force against Al Qaeda. The 1941 declaration formally checked the Constitutional box for a declaration of war, under Art. I. But legally, the Supreme Court and courts of appeal have held that a joint resolution of Congress is as good as a declaration of war. (See Doe v. Bush, ___ F. 3d ___ (1st Cir. 2003). So once again, Mr. Roth misstates the law in order to make his point.

(5) "The best way to determine if war rules should apply would be through a three-part test. To invoke war rules, Washington should have to prove, first, that an organized group is directing repeated acts of violence against the United States, its citizens, or its interests with sufficient intensity that it can be fairly recognized as an armed conflict; second, that the suspect is an active member of an opposing armed force or is an active participant in the violence; and, third, that law enforcement means are unavailable."

This test really seems like a threshold test for the conduct of warfare; it establishes criteria by which the U.S. can use the tools of war against a non-state actor like Al Qaeda. Again, I don't think that international law or American law compels such a conclusion. This solution sharply curtails the power of the President to act as Commander-in-Chief, and to take those actions he deems necessary to defend the United States against foreign and domestic threats. I think it's absurd that "Washington should have to prove, first, that an organized group is directing repeated acts of violence against the United States". Why? Why should America suffer repeated blows from an enemy just to make a legal case for its response? Why should we endure more American deaths than we have to? The Constitution doesn't require such action; neither does international law. Indeed, Art. 51 of the UN Charter allows for a response to an armed attack, yet Mr. Roth would constrain such a response.

Second, Mr. Roth's requirement for active membership in an armed force or active participation in violence ignores the nature of the threat we now face. Al Qaeda is not dangerous today because of its zealots who are willing to die for their cause. Al Qaeda is dangerous today because it has established cells and people around the world to provide financial, logistical, infrastructural, legal and organizational support. Without this global network, Al Qaeda is just a bunch of murderous, ideological thugs. America can't afford to limit its response to the actual trigger-pullers (or plane hijackers) in this organization -- we must root out the people who enable Al Qaeda to conduct terror operations around the world.

Finally, Mr. Roth's requirement for the unavailability of law enforcement doesn't make sense. Just as a craftsman employs different tools for different jobs, so too does America employ different tools of state for different enemies. Police officers and FBI agents are appropriate for certain threats, and indeed, for certain parts of the Al Qaeda threat like domestic sympathizers who raise money for the terrorist organization. But military and intelligence tools are appropriate for other parts of the threat, like Al Qaeda's command structure. Mr. Roth would circumscribe the use of those tools to the most narrow of circumstances, and I think that's a very risky thing to do.

Coda: Eugene Volokh cites to a couple of authorities for the well-settled legal proposition that America does not need a formal declaration of war under Art. I of the Constitution to be at war for legal purposes. (I make this point above, but it's always nice to bolster my argument with a note from my Constitutional Law II professor.) Eugene's right both as a matter of domestic law and international law. Domestic law recognizes Congressional joint resolutions as sufficient authority for the President to wage war, and President Bush has two such resolutions (Public Laws 107-40 and 107-243). International law really doesn't care about the distinction, since the laws of war are triggered by the de facto existence of "armed conflict", not the existence of a formal de jure state of war.
posted by Phillip Carter at 15:36

 
Time's person of the year: The American Soldier

A half century after declaring the "American fighting man" its person of the year, the editorial board of Time magazine has decided to honor "The American Soldier" as its person of the year for 2003. Clearly, the war in Iraq has dominated the front pages of American newspapers and magazines. But rather than honor the politicians and generals who commanded the war, Time chose to honor the America's finest sons and daughters who actually did the hard work of fighting the war in Iraq -- as well as the small war in Afghanistan, and the ongoing missions in Bosnia, Kosovo, Korea, and elsewhere.

The main story inside Time magazine follows the survey platoon of HHB 2-3 Field Artillery, 1st Armored Division. Three of its men and women also appear on the front page of the magazine. One event in particular hits the platoon hard: the death of its platoon leader, 2LT Ben Colgan. Today's Los Angeles Times has a feature story on 2LT Colgan's death, and its effect on his family back home. Time reports on this event, and the way the platoon fought back from this tragedy to persevere in its mission.

Unfortunately, the full stories aren't available for free on Time's website. But I think the magazine is a worthwhile read, if you can make it to a newstand to pick it up.
posted by Phillip Carter at 09:23

 
Happy Holidays -- Intel Dump will take a break from publishing over the next week to enjoy the holiday season with friends and loved ones. Wherever you're at, I hope you enjoy a happy and healthy holiday season too.
posted by Phillip Carter at 12:51

 
A Constitutional clash of epic proportions
Courts, Congress, President battle over power to designate enemy combatants

Yesterday, the Executive Branch lost two key battles in two key courts in its legal war on terrorism. In the first case, Padilla v. Rumsfeld, the 2nd Circuit Court of Appeals effectively told the Administration that it could not hold Jose Padilla as an "unlawful enemy combatant" -- at that it either must charge him in civilian court or release him. In the second case, Gherebi v. Bush, the 9th Circuit Court of Appeals held that federal courts may exercise jurisdiction over detention challenges from prisoners at Guantanamo Bay. Both are separate issues, but together, the impact of this is to seriously impair the Bush Administration's method of detaining and holding prisoners in the war on terrorism. Today, Jess Bravin has a good roundup of the matter in the Wall Street Journal (subscription required), as does Charles Lane in the Washington Post. Here's an excerpt from the WSJ story:

The administration had been scrambling to soften its policy of holding detainees suspected of terrorism indefinitely while denying contact with lawyers or other ordinary aspects of American due process. In the face of mounting criticism at home and abroad, the Defense Department has given three detainees access to lawyers this month, the latest just Thursday as part of proceeding toward a military trial. The U.S. also has reassured some allies that it won't pursue the death penalty against detainees, and told others that those nations may soon take custody of their citizens being held incommunicado at the U.S. detention center in Guantanamo Bay, Cuba.

The U.S. moves signal growing recognition that its treatment of such prisoners presents a deepening political and legal problem. But Thursday's sharply worded rulings were likely to put the White House further on the defensive. In two separate 2-1 decisions, appeals-court panels in New York and San Francisco called on the U.S. to grant additional rights to suspects it has been holding indefinitely.

* * *
The latest rulings join the rush of antiterrorism cases approaching the Supreme Court, which more than two years after the attacks of Sept. 11, 2001, has yet to decide where traditional civil liberties must give way to claims of national security. The high court already has agreed to hear an appeal of the District of Columbia Circuit's Guantanamo decision. And it is considering whether to take an appeal for Yaser Esam Hamdi, a U.S.-born man whose detention as an "enemy combatant" was upheld by the Fourth Circuit Court of Appeals in Richmond, Va.

* * *
The Bush administration criticized the rulings by the appellate courts and vowed to defend its policies. Scott McClellan, the White House spokesman, called the Second Circuit decision "flawed" and said President Bush had instructed government lawyers to seek a stay pending an appeal. The government can ask for rehearings before the full circuit courts or seek review by the Supreme Court.

* * *
Legal experts were split on how the issue would fare at the Supreme Court.

Philip Heymann, a professor at the Harvard Law School, called the policy of detaining Americans arrested in the U.S. as enemy combatants "the single most dangerous and needless power claimed by the administration." But he noted the Second Circuit addressed only the more limited question of separation of powers among branches of government, creating "the hardest way possible for the executive to win at the Supreme Court."

John Yoo, a former Justice Department official who helped design the Bush administration's detention policy and is a law professor at the University of California, Berkeley, said the majority on that panel erred by trying "to turn the clock back to Sept. 10, 2001. They think the best way to handle terrorism is the way we used to, as simple crime."

Analysis: These cases are as big as their billing -- they change the legal environment for the way the administration must deal with suspected terrorists and enemy combatants. Indeed, I now have to alter my syllabus for my Law & Terrorism class, because these cases represent such a fundamental reversal from what had been decided at the U.S. District Court level. In essence, the two appeals courts have sharply curtained two aspects of presidential power here -- the power to designate and detain enemy combatants, and the power to hold them in a place where Art. III courts cannot exercise jurisdiction. There has not been as clear of a challenge to executive authority from the courts since 1952, when the Supreme Court overruled then-President Truman's decision to seize steel mills during the Korean War.

The Administration's response has been somewhat predictable -- to criticize both the Gherebi and Padilla rulings, and to say that it will fight both decisions in court. Towards this end, the Justice Department has asked the 2nd Circuit to stay its opinion. (The 9th Circuit already did stay its opinion in anticipation of the Supreme Court's decision in Al-Odah v. United States.) The Justice Department's statement in the Padilla case reflects its likely legal argument to an en banc panel of the 2nd Circuit, and eventually to the Supreme Court:

In times of war, the President must have the authority to act when an individual associated with our nation’s enemies enters our country to endanger American lives. As U.S. Circuit Judge Richard C. Wesley said in dissent, ‘[T]he President, as Commander in Chief, has inherent authority to thwart acts of belligerency on U.S. soil that would cause harm to U.S. citizens, and, in this case, Congress through the Joint Resolution specifically and directly authorized the President to take the actions herein contested.... Congress could not have intended to limit the President’s authority to only those al Qaeda operatives who actually planned or took part in 9-11.... Clearly, Congress recognized that al Qaeda and those who now do its bidding are a continuing threat to the United States.

Legal Analysis: There are lots of ways for the court to look at this. It appears from the two orders that this is shaping up as a fight over executive power -- and whether the President may:
- Designate American citizens (and non-citizens) as enemy combatants;
- Detain enemy combatants pursuant to the laws of war, without legal process;
- Deny access to counsel to American citizens held as enemy combatants
- Deny the Art. III courts any sort of judicial review over these decisions; and
- Assert these powers on the basis of Public Law 107-40, the post-9/11 act of Congress authorizing force in response to Al Qaeda's attacks.

There really isn't a lot of precedent out there on this issue. Youngstown, a 50-year-old case, is the Supreme Court's best analysis of executive branch power. Most scholars look to Justice Jackson's influential concurrence in this case for the test of whether an executive action is Constitutional, which Justice Jackson stated this way [See 343 U.S. at 636-38]:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. 2 In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

So the legal question in this case is whether the President is acting pursuant to a grant of power from Congress (or the Constitutional), in the absence of such authorization, or contrary to an act of Congress. The degree of deference from the Court will depend on the category in which the President's action falls. Obviously, the President contends that he is acting pursuant to P.L. 107-40, and his Art. II authority as Commander-in-Chief, and therefore his actions fall within Justice Jackson's first category. Thus, they deserve deference from the courts. The 2nd Circuit held yesterday that in fact, the President's actions here run afoul of the 1971 Non-Detention Act (codified at 18 U.S.C. 4001), which says that citizens may not be "imprisoned or otherwise detained ... except pursuant to an Act of Congress." Therefore, the President's actions are within Justice Jackson's third category, and thus unconstitutional.

What's the real answer here? I don't know. Legal scholars who are much smarter than me (e.g. David Cole, Laurence Tribe, Kathleen Sullivan, John Yoo, Ruth Wedgwood, and others) have been debating this issue in the law reviews for the past two years. There are good arguments on both sides, and it's pretty close to an indeterminate problem in my opinion. I think the Supreme Court will ultimately decide against the White House because it wants to preserve the institutional balance of powers between three branches. In other words, letting the White House claim all these powers (particularly the absence of judicial review) would let the President expand his power too much, and the courts stand to prevent either political branch from taking that much power. But we'll see what happens when the Supreme Court hears Al-Odah early next year, and if it takes either Padilla or Gherebi on appeal.

Update I: Eugene Volokh, a Constitutional Law expert and law professor at UCLA, analyzes the Padilla v. Rumsfeld opinion on his weblog. Eugene predicts that the Supreme Court will take the case, and that it will side with the dissenter who argued that the Bush Administration's actions are Constitutional because the President had authorization to use force against Al Qaeda pursuant to P.L. 107-40. Eugene's more optimistic than I am about the outcome of this case for the Executive Branch. But given his experience in the field, and clerkship for the U.S. Supreme Court, I'd put money on his prediction before mine.

Update II: Eric Muller, another smart law professor, has some more thoughts on the issue here. He poses an interesting hypothetical: what if Congress had authorized the President to use "military force" against the Medellin drug cartel? Could the President then detain drug lords, drug couriers, drug dealers, and even drug users as "unlawful enemy combatants"? That's the kind of tough hypothetical which the Solicitor General will have to deal with in the Supreme Court, and I'm not sure where to draw the line between problems of law and problems of war. At least, the budding lawyer in me doesn't know where to draw the line -- the soldier in me things in binary terms of shoot/no-shoot.

Update III: Also see this comment on the decisions from Unlearned Hand at En Banc, a group weblog of law students from around the country.
posted by Phillip Carter at 07:47

 
The intel analysts who tracked down Saddam

Today's Wall Street Journal (subsciption required) has a great article on the two soldiers from Alpha Company, 104th Military Intelligence Battalion, who put together the pieces of the puzzle to find Saddam. I'm proud as hell of these soldiers, because they work in my old brigade command post in the 1st "Raider" Brigade, 4ID. I worked closely with A/104 MI, and thought the world of their soldiers, who were some of the smartest that I met while I was in the Army. This story shows just how smart, creative, and innovative young soldiers can be when given a little bit of guidance and a lot of room to work.

TIKRIT, Iraq -- The capture of Saddam Hussein began with four names Maj. Stan Murphy scribbled on three pieces of paper and ripped from a small green notebook.

The 41-year-old intelligence officer with the First Brigade of the Fourth Infantry Division knew these names were just a small part of a much larger web of names and families likely to be hiding Mr. Hussein.

He handed the names to two junior U.S. military-intelligence analysts in Tikrit: Lt. Angela Santana, 31, and Cpl. Harold Engstrom, 36, both with Alpha Company, 104th Military Intelligence Battalion. The unit's job in Tikrit was to support the Fourth Infantry Division with intelligence data, helping the troops break up the resistance cells threatening the postwar stability of Iraq -- and ultimately to arrest Mr. Hussein.

The two officers say Maj. Murphy's orders to them were: "Figure it out, draw the lines, make me a chart and find every crucial person connected to Saddam."

Their first thought: "Is he joking? This is impossible. We can't even pronounce these names," says Lt. Santana.

* * *
The duo read through sheaves of interrogation reports from detainees and interviews with local Iraqis. They plumbed a huge database provided by central military intelligence. Eventually, they created what they nicknamed "Mongo Link," a four page, 46-by-42-inch color-coded chart with their 300 names on it. It was basically a family tree, with Mr. Hussein's picture at the center, and lines connecting his tribal and blood ties to the six main tribes of the Sunni triangle: the Husseins, al-Douris, Hadouthis, Masliyats, Hassans and Harimyths. The military believed members of these clans shielded Saddam for eight months, financed the resistance, and planned assassinations and attacks against Iraqis and coalition forces.

Next to each of the names, Lt. Santana and Cpl. Engstrom scribbled down bits of information they were able to gather about individuals: their ages, home village, spouses and children, where the names came from, whether people on the list were in custody and how they got there.

Lt. Santana and Cpl. Engstrom's chart, the contents of which are classified, eventually came to be known in military circles for its accuracy and has even made its way to the commander of the coalition forces, Gen. Ricardo Sanchez in Baghdad.

Analysis: Awesome stuff. Some might say that these soldiers were just doing their jobs, and they don't deserve any special recognition for that. I think that's bunk. At the very least, CPL Engstrom deserves to be recommended for E-5 (Sergeant), and possibly groomed for future MI work as a warrant officer or commissioned officer. 1LT Santana ought to be recognized as well, with an outstanding OER at a minimum. This is first-rate work, and these soldiers deserve to be recognized. It may not be battlefield heroism in the conventional sense that deserves a medal for valor, but some sort of recognition is in order.

Beyond that, I think this is a testament to so many things about our all-volunteer force. Though you can argue that you often get really smart soldiers (the proverbial guy with a Harvard degree) through conscription, in reality, it's never worked out that way. Conscription-based armies tend to be less educated, less well-trained, and less professional, and the complete opposite of our what our all-volunteer force has become. CPL Engstrom and 1LT Santana demonstrate all that's good about an all-volunteer force, as well as a command climate that lets their initiative and ingenuity flourish. As the Army's first digitized brigade, the Raider Brigade has a proud tradition of letting junior officers and NCOs lead the way with their initiative, and I'm proud to see that tradition carried on by these two soldiers. As Gen. George S. Patton once said: "Never tell people how to do things. Tell them what to do, and they will surprise you with their ingenuity."

Update: The New York Times runs its version of this story today, with appropriate credit to the Wall Street Journal. But unfortunately, Eric Schmitt fails to credit the two junior soldiers with the actual analysis work that led to the capture.
posted by Phillip Carter at 13:11

 
New blog of note: The Decembrist

Last night at the Washington Monthly's holiday party, I learned of an interesting new political weblog. If you're into politics, and you like the weblogs of people like Josh Marshall and Dan Drezner (i.e. smart people who write well about politics), then you'll like The Decembrist by Mark Schmitt. The blog is written from a left-of-center point of view, but the author doesn't hide that, and it doesn't take away anything from the sophistication of Mr. Schmitt's analysis. Check it out.
posted by Phillip Carter at 12:56

 
2nd Circuit overrules Bush Administration on 'enemy combatant'
9th Circuit chimes in too with a ruling of its own agains the White House

The 2nd Circuit Court of Appeals held today that the President lacked the power to designate Jose Padilla as an enemy combatant and hold him indefinitely without access to counsel. The decision is a major reversal for the administration, which had sought to hold Padilla (and future Al Qaeda operatives like him) as something like enemy prisoners of war -- instead of detaining them as defendants in the civilian criminal justice system. (Findlaw.Com has the 2nd Circuit's opinion posted, as well as briefs for Padilla and the government in the case).

Mr. Padilla, a convert to Islam, was arrested last year at O'Hare International Airport near Chicago on his return from Pakistan after extensive travel in the Middle East. Attorney General John Ashcroft drew worldwide attention soon after when he said the government believed that Mr. Padilla, who has a long criminal record as a gang member in Chicago, had been planning to explode a bomb that would use conventional explosives to disperse radioactive particles over a wide area.

Subsequently designated an "enemy combatant" by the government, Mr. Padilla was briefly held in Manhattan before being sent to a Navy brig in Charleston, S.C., where he has been denied access to a lawyer and held incommunicado ever since.

"As this court sits only a short distance from where the World Trade Center once stood, we are as keenly aware as anyone of the threat Al Qaeda poses to our country and of the responsibilities the president and law enforcement officials bear for protecting the nation," Judges Barrington D. Parker Jr. and Rosemary S. Pooler declared today.

"But presidential authority does not exist in a vacuum," two jurists wrote, "and this case involves not whether those responsibilities should be aggressively pursued, but whether the president is obligated, in the circumstances presented here, to share them with Congress."

Alluding to the constitutional import of the Padilla case, the majority wrote: "Where, as here, the president's power as commander in chief of the armed forces and the domestic rule of law intersect, we conclude that clear Congressional authorization is required for detentions of American citizens on American soil."

Today's ruling, which is probably not the final word in the case, does not mean that Mr. Padilla will go free, even if the ruling is sustained on appeal.

The two judges said Defense Secretary Donald H. Rumsfeld should release Mr. Padilla from military custody within 30 days, after which he could be prosecuted in civilian courts or held as a material witness.

Analysis: I'll have time later today to look at this opinion and offer some thoughts. But procedurally, this is not the last word. The government may (and probably will) petition the 2nd Circuit for an en banc review of the matter, and I imagine they'll get it. The government will probably ask the court to stay this order for the duration of that proceeding, lest irreparable harm be done by giving Padilla access to counsel. The 2nd Circuit will probably accede to that request as well. After the full 2nd Circuit hears the case, both parties will have the right to ask the Supreme Court to hear the matter, and they may well do so. So... the final word remains to be written. More to follow.

Update I: In a 2-1 opinion, the 9th Circuit Court of Appeals ruled today that federal courts do have jurisdiction to consider the habeas corpus petitions of detainees at Guantanamo Bay. (Thanks to How Appealing for the heads up) Judge Stephen Reinhardt wrote the opinion, joined by District Judge Milton I. Shadur, who was sitting by designation. A nearly identical issue is currently pending before the U.S. Supreme Court in Al-Odah v. United States, so the 9th Circuit stayed its opinion until a decision in that case. Nonetheless, this is a big reversal of fortune for the executive branch, which won pretty decisively at the District Court level in this case last year.

Update II: December 18 is "Gitmo News Day", in case you haven't heard. The Pentagon assigned a defense attorney to the second detainee at Guantanamo Bay today -- Salim Ahmed Hamdan of Yemen. He will be represented by Navy Lt. Cmdr. Charles Swift, who works for Air Force Col. William Gunn. Though LCDR Swift's paycheck comes from the federal government, his office is walled off from the rest of DODGC/OMC. These guys' OERs depend on how well they defend their clients, and my experience with veteran JAG attorneys has been that they are very good on the defense side of the table because they know the system.
posted by Phillip Carter at 10:31

 
Government searches defense attorney's office in Gitmo translator case

The AP reports this morning that Air Force investigators, holding a search warrant from a military judge, searched the offices of an attorney who is representing Airman Ahmad Halabi, charged with misconduct at Guantanamo Bay. The article didn't say exactly what was searched or what was seized, or why the search was executed.

Air Force investigators searched the offices of Halabi's military attorneys Thursday at Vandenberg Air Force Base in California, his civilian attorney, Donald G. Rehkopf Jr., said yesterday. The investigators, who had a military warrant, copied the hard drive of one lawyer's computer, Rehkopf said.

The search raised the possibility that two military defenders, Majs. James Key III and Kim London, could be called as witnesses against Halabi. That could mean they would have to be taken off the case and new defense attorneys would have to start from scratch.

Air Force agents also burst into a room where Halabi was meeting with his attorneys last Wednesday and took hours to return documents and a laptop computer to him when he was taken from a jail at Vandenberg to Travis Air Force Base, Rehkopf said. Travis, also in California, is Halabi's home base, where proceedings against him will be held.

"This conduct by the government is unprecedented and can only be interpreted as a conscious disregard of the attorney-client relationship," Rehkopf said in a statement. He said Halabi's defense team vigorously protested the incidents to the military judge, Col. Barbara G. Brand.

Analysis: This is pretty odd... I'm not sure what to make of it without more information. Mr. Rehkopf is a widely known and respected member of the military justice bar, and he knows the rules of the game pretty well. I doubt that he would expose himself to criminal charges by having classified material he wasn't supposed to have, but at the same time, he's a good advocate who will push the line for his client when necessary. Nonetheless, this doesn't look good for the government, and it doesn't make the military justice system look all that fair either.
posted by Phillip Carter at 05:53

 
Justice Department establishes policy for enemy combatants' access to counsel

The AP reports that the Justice Department has changed tack on its decision to deny "enemy combatants" the right to an attorney. The change comes in the wake of comments from former-DOJ officials Viet Dinh and Michael Chertoff, who said the current policy of denying access to counsel with no possibility of judicial review was "unsustainable" in court.

Three senior Justice Department officials, briefing reporters on condition of anonymity, outlined the policy for the first time and said it is the proper way to balance national security and constitutional protections for people in government custody as part of the war on terror.

One of the officials said the goal never has been to deny counsel, only to delay it until interrogations are finished.

Two U.S. citizens are being held as enemy combatants, Yaser Esam Hamdi and Jose Padilla.

Critics say the policy gives the government too much leeway and treads on the constitutional right of a defendant to be granted quick access to an attorney and the courts. They note the government still is arguing strenuously in federal courts that it has an absolute right to deny access to lawyers for enemy combatants, including U.S. citizens, and that such a decision is not subject to review by judges.

* * *
legal experts say the Bush administration still has not clearly articulated when a suspected terrorist should be tried as a criminal in civilian courts and when that person should be designated an enemy combatant.

"What's needed is a new system of safeguards,'' said Elizabeth Rindskopf Parker, dean of the University of the Pacific law school and former general counsel at the CIA and National Security Agency. "It's not a situation our criminal laws were designed to respond to."

Analysis: Yeah, I think that last point is right. Our criminal justice paradigm is ill-suited for deterring, preventing and responding to terrorism, and that has been made clear by the clash over the "enemy combatant" issue among others. I think the need to detain and interrogate enemy operatives, whether they be battlefield prisoners or clandestine terrorists, is pretty compelling. (For a good articulation of this interest, see this declaration of Cdr. Donald Woolfolk in the Hamdi case.) On the other hand, our Constitution guarantees certain rights to the accused, and it's hard to differentiate between an enemy combatant and a criminal caught on the streets of Chicago.

I have always thought that the White House needed to put forward some system for the management of these issues, and that it should have a little more faith in the Art. III courts. After all, the Art. III courts have basically upheld the executive branch's power to do what it's doing (see, e.g., Hamdi v. Rumsfeld and Padilla v. Bush). The courts have only required some minor accomodations, such as access to counsel in order to prepare a habeas corpus petition, and only then after a period of seclusion and interrogation to accomodate the government's interests.

But even then, holding enemy combatants for an indeterminate length of time is probably "unsustainable" as a policy choice, to use Judge Chertoff's words. Oh sure, the 3rd Geneva Convention allows us to detain enemy POWs for the duration of the conflict. But this war on terrorism is quite unlike the armed conflicts contemplated in 1949 when that document was written. It may last for decades, flaring up and subsiding much like the Cold War. At some point, we ought to develop a system to adjudicate the fate of the individuals we detain. This system may find these people guilty, at which point we continue to hold them. It may find them not guilty of being a combatant, at which point we should release them rather than waste our resources holding them at Gitmo. But regardless of the outcome, it will give them some measure of legal process, and that's a far sight better than where we're at now.

The Administration's proposal is essentially the right thing to do here, but it still contains a lot of discretion. I predict that civil liberties groups will continue to attack this decision to provide counsel because it contains the ambiguous trigger of "when interrogations are finished". To many who embrace the criminal justice paradigm, that's not what the Framers had in mind when they wrote the Sixth Amendment's right to counsel. But I think there has to be some balance here, between the government's compelling interest in interrogating terrorists and its compelling interest in securing Constitutional liberties. What do you think?
posted by Phillip Carter at 05:42

 
Is Saddam a POW?

The Pentagon's answer appears to be "yes... sort of". Ordinarily, this would be a no-brainer. But since the start of America's war on terrorism, once-easy definitions like "POW" are now hard. There has been a great deal of equivocation about the Geneva Convention's scope from the Pentagon with respect to the detainees at Guantanamo Bay. In this case, the Pentagon appears to be taking the position from the start that Saddam Hussein qualifies for treatment as a "prisoner of war", but they haven't actually said that he is a prisoner of war for the purposes of the Geneva Convention. [Not to be Clinton-esque, but this is a case where the distinction between "treatment as a POW" and "he is a POW" matters.]

WASHINGTON, Dec. 15, 2003 - Coalition forces are ensuring that former Iraqi dictator Saddam Hussein's Geneva Conventions rights are protected while he is in custody and that he receives "all of the privileges of a prisoner of war," according to the commander of coalition forces in Iraq.

U.S. Army Lt. Gen. Ricardo S. Sanchez said today on the CBS "Early Show" that Saddam "has been talkative" since his capture near Tikrit Dec. 13, and that "he'll respond readily to questions that are asked of him in terms of just normal administrative requirements."

But Sanchez stopped short of saying Saddam is cooperating with coalition forces. "I wouldn't characterize it either way, cooperative or uncooperative," he said. "We still have a long way to go in this process. And at this point, we still have to ensure that we're taking care of him. He's being treated … according to the Geneva Conventions … We'll be protecting him."

On second thought, we may not be giving Saddam the legal status of the Geneva Conventions. Note what LTG Sanchez said, as opposed to what the PR sergeant wrote in the story. LTG Sanchez said that "He's being treated ... according to the Geneva Conventions." That's basically what we say about the guys at Guantanamo too -- that they're being given the humanitarian protections of the Geneva Conventions, but not the legal status or protection of being POWs. LTG Sanchez could have said that "Saddam is a POW, and therefore, he'll get all the legal privileges and protections of such." But he didn't.

There is some room for doubt. Art. IV of the Geneva Convention lays out the requirements for qualification as a "prisoner of war". I think there are colorable arguments within this article for why Saddam should or should not be considered a POW. But the issue isn't up to me, and frankly, it isn't up to Secretary Rumsfeld or President Bush. Art. V of the Geneva Convention establishes a procedure for adjudicating whether persons are POWs or not. We conducted thousands of these proceedings during Gulf War I, and we may need to do one now in order to check the formal Geneva Convention box before proceeding to trial. If we don't, Saddam's defense attorneys will attack this pre-trial process as legally insufficient, and possibly as a deprivation of Saddam's rights. (Ironic, isn't it?)

Does any of this matter? No and yes. None of this matters for the interrogation going on right now, because no one is going to tell the U.S. it can't squeeze Saddam for information. Whether hard or soft, international law has serious enforcement problems, and even if the U.S. were violating some international pact, there is simply no way that anyone could force the U.S. to stop interrogating Saddam because it would run so contrary to our national interest. However, it will matter for any eventual trial of Saddam, either by an Iraqi tribunal, international court, or U.S. court. Western law uses procedural mechanisms to ensure substantive justice, and when those procedures aren't followed, the presumption is that justice wasn't done. Despite the irony of observing a deposed dictator's rights, we must do so in order to preserve whatever verdicts are ultimately given down to seal his fate.

Update: Defense Secretary Donald Rumsfeld said some more on this issue today at his press conference in the Pentagon. Depending on your perspective, he either clarified or muddied the matter:

Q. Mr. Secretary, is there any evidence that Saddam Hussein was in any way involved in the current insurgency or attacks against U.S. troops? And if that is the case, would that in any way change his status, prisoner of war status, as far as the United States is concerned? Would the U.S. seek some sort of legal remedy against Saddam Hussein?

SEC. RUMSFELD: I think that there are a whole host of people in countries that have reason to feel they have some standing -- to use the legal word -- with respect to Saddam Hussein and how he might or might not be prosecuted for various things. He is being accorded the protection of a POW, but he's not being legally described as one at this stage. He, clearly, is being treated under the Geneva Convention as -- with the protections of the Geneva Convention, and is being treated humanely.

The lawyers are carefully looking at the question you posed, and it is conceivable that to the extent he was involved in the post-major combat operation terrorist activity that's taken place in the country, that that could, in one way or another, affect charges that could be brought against him.

But it's not for me to get into that. As the president said yesterday, there are a lot of people with interests in this. It will be handled well. And the people who are the proper legal authorities are addressing a whole host of questions, many of which are being asked and discussed in the press, and many of which haven't even been thought of yet.

Hmmm... mysteriouser and mysteriouser. More to follow...
posted by Phillip Carter at 16:05

 
Al Qaeda extends its deadly reach to South Korea

The Los Angeles Times will have an interesting report in Wednesday's paper about indications in South Korea that Al Qaeda has conducted reconnaissance of U.S. targets there for a possible attack. The indications consist of visits by certain persons of interest to certain parts of South Korea.

One of the more worrisome instances involved a Pakistani national who arrived from Manila earlier this year and has since left South Korea, said Hahm Seung Hee, a member of the National Assembly's intelligence committee.

* * *
Hahm said that another suspected operative connected with an Indonesian terror cell tried to enter South Korea this year, but was turned back at the airport because of faulty travel documents. The same man, however, was believed to have had better luck operating in Japan, according to Hahm.

* * *
The U.S. Embassy had no comment. A U.S. official said, however, in a recent interview that the potential for an Al Qaeda attack in South Korea was relatively low because of the country's rigorous internal security, honed by decades of tensions with communist North Korea.

The South Koreans "are probably better than most at keeping this kind of threat at bay," said the official, who spoke on the condition of anonymity.

There are 37,000 U.S. troops stationed in South Korea. Security around American facilities was particularly tightened after Sept. 11, 2001, and again this year with the onset of the war in Iraq.

Diplomats here said that South Korean intelligence has been keeping close tabs on tens of thousands of foreign workers and students here from Muslim countries, many of whom worship at a mosque in Seoul in the same neighborhood of bars and shops catering to American soldiers.

Analysis: I'm pretty familiar with the security situation in Korea, having spent a year there in the 2nd Infantry Division. This article disturbs me, because there are are a large number of U.S. targets in South Korea that a terrorist could attack. That said, most of those are military bases, and they are fairly well protected because of the North Korean threat which is omnipresent in South Korea. So I'm not certain what to make of this story. Some things deserve special mention, however:

- South Korea is home to a startling number of foreigners, including people from every part of Asia. Specifically, I remember large numbers of South Asians (Indians and Pakistanis) in South Korea, ostensibly because of the technology industry, and large numbers of Phillipine persons. Al Qaeda has extensive connections to citizens from the Phillipines and Pakistan, so it's logical to be worried about persons from those countries who are in South Korea to conduct reconnaissance of U.S. targets.

- The South Korean security apparatus is quite good at its job. The North Korean threat looms over the country like a fog, and the security agencies there have unbelievable amounts of power that they use to surveil just about anything and anyone who is suspicious. For the most part, non-Koreans stick out like a sore thumb, and the South Koreans are pretty good at tracking them inside their country. I think it's a pretty good indicator of success that the ROKs were able to detect these Al Qaeda operatives in the reconnaissance phase of their operation.

What's the bottom line??? Two things. First, Americans are targets for Al Qaeda wherever they're at, and our allies are probably targets as well. (See, e.g., the Al Qaeda bombing in Bali of an Australian tourist area) Second, we cannot let ourselves become complacent in the war against terror. Despite our recent success in capturing Saddam, and our continuing efforts to root out terrorists in Afghanistan and rebuild that nation, we have not won this war yet.
posted by Phillip Carter at 15:55

 
The uncertainty about smallpox

Scientific American has an interesting article on the debate in the scientific community over smallpox, its potential for employment as a bio-weapon, and the need for mass vaccination. For a long time, I read only military literature about smallpox, and thought it self-evident that we should initiate a mass vaccination plan for the virus. But I learned from some colleagues at UCLA's that there has been a raging debate over this subject within the medical community, and that no consensus really exists for how to best deal with this threat. The SciAm article has a pretty interesting discussion, and I think it's worth a read.

"Biological terrorism is our future, and smallpox is a serious threat," insists Ken Alibek, who headed the former Soviet Union's biological weapons program. Now vice chairman of Advanced Biosystems, based in Alexandria, Va., Alibek was one of 200 epidemiologists and tropical disease experts who gathered in Geneva last October to discuss how nations should prepare for an outbreak. The U.S. has already outlined its plan--a voluntary regimen that aims to vaccinate a total of 10.5 million people in phases.

Some scientists, however, see little data to support such widespread vaccination. The plan is partly based on mock scenarios and mathematical models that attempt to predict the magnitude of an outbreak. One major problem is that they must use data on smallpox transmission gathered from pre-1977 Africa, where the last smallpox case occurred. The virus might behave completely differently in today?s unvaccinated cosmopolitan societies. And all models rely on assumptions that by their nature are inaccurate.

The most grave outbreak scenario is "Dark Winter," to which U.S. Secretary of Defense Donald H. Rumsfeld has referred a number of times. It predicts that simultaneous attacks in three shopping malls could balloon to as many as one million dead and three million infected.

But many scientists find the scenario too extreme. What is most contentious is the infection rate. Dark Winter assumes that each infected person will transmit the virus to 10 others and even to descendants for several generations. This is not, however, what epidemiologists have observed in the field. Rarely was smallpox transmitted to more than two or three people, if at all, says J. Michael Lane, former director of the smallpox eradication program at the Centers for Disease Control and Prevention, and most were infected by prolonged exposure. What is more, the virus is not transmissible until physical symptoms appear. By that time, Lane states, the person usually feels "so awful" that they are bedridden. And even though the virus may not behave the same way today, Dark Winter assumes that the sick are not effectively isolated, which is "totally unrealistic," he adds.

The Dark Winter exercise to which the article refers is one of the scariest things I've ever read about. It basically wargames the way that a smallpox attack would affect the United States, and ultimately, it predicts that we will fail in responding to this assault. Millions will die, and the basic structure of American society will disappear in the face of smallpox's onslaught. If you want to stay up late worrying about our future, read the AAR slides from this exercise a few times.

But like any exercise, Dark Winter was based on a number of assumptions about the biology of the smallpox virus, as well as the way complex events would interact with each other in the real world. It's impossible to predict, with any real fidelity, how something like a smallpox attack would affect the United States. It's still important to hold exercises in order to develop plans and refine them. But we ought not put too much stock in the exercise's results, which almost by definition, will look somewhat different from reality.

For more on bioterrorism and related subjects, I recommend reading Germs by Judith Miller, Stephen Engelberg, William Broad; Biohazard by Ken Alibek; Biological Weapons: Limiting the Threat, edited by Nobel laureate Joshua Lederberg; Bioterrorism: Guidelines for Medical and Public Health Management, by D.A. Henderson; and The Coming Plague and Betrayal of Trust by Laurie Garrett. This is a subject where you can never know enough...
posted by Phillip Carter at 13:57

 
Saddam's Capture -- a case study in OODA

For months, America has been chasing Saddam Hussein around Iraq in a grand game of cat and mouse. We finally got him, thanks to good intelligence and quick action which was able to exploit that intelligence. Just having one of those is not enough. To win in warfare (or any competitive endeavor), you have to Observer/Orient/Decide/Act faster than your adversary. As this snippet from Eric Schmitt's article in Monday's New York Times illustrates, that's exactly how the U.S. got Saddam.

The operation illustrates a new style of cooperative American warfare. Conventional Army soldiers work alongside members of Task Force 121, a military Special Operations unit that includes Central Intelligence Agency officers. Intelligence agencies that used to zealously guard their secrets now pool their information so troops can act swiftly on a highly perishable tip.

"Saddam moves all the time," said one Bush administration official. "Our ability to locate him is only as good as the most recent intelligence."

Many details of the raid on Saturday night — the precise information that led American forces to his hide-out and Mr. Hussein's movements since his government fell — remained unclear on Sunday. But top military officials here, in Tikrit and in Washington, say the operation that netted Mr. Hussein, labeled High Value Target No. 1 by the military, moved swiftly from "actionable intelligence" to capture.

Military officials said that about 10:50 a.m. Saturday in Iraq, the military command in Baghdad received the crucial information about Mr. Hussein's potential whereabouts.

The mission to capture or kill Mr. Hussein, code-named Operation Red Dawn, fell to the Fourth Division's First Brigade, commanded by Col. James Hickey. No Iraqi forces were involved in the operation, American military officials said.

About 6 p.m., amid darkness, the brigade's forces, including cavalry, engineers, artillery and Apaches, moved toward their targets: two farmhouses in Ad Dwar, a village about nine miles southeast of Tikrit, the heart of Mr. Hussein's ancestral homeland.

Two hours later, the forces raided the farmhouses but did not find Mr. Hussein. So Colonel Hickey ordered nearly two square miles blocked off, and an intensive search began.

Senior Pentagon and military officials said the mission to capture Mr. Hussein followed basic procedures. Conventional forces of the Fourth Division secured the perimeter of the search area while Special Operations forces in Task Force 121 conducted the direct search.

Because the area to be searched was large, it was unclear on Sunday night whether soldiers from the Fourth Division or Task Force 121 had discovered Mr. Hussein's hiding place, an underground chamber near a mud hut and metal lean-to inside a walled compound.

The hut had two small rooms, a bedroom and a rudimentary kitchen. The bedroom was cluttered with new clothes, including T-shirts and socks, some still in their wrappers, leading General Odierno to estimate that Mr. Hussein had been at the site perhaps only an hour or so.

An orange and white taxi was parked next to a sheep pen near the hut. The hut was near the Tigris River, and American forces found several boats nearby that commanders surmised may have been used to bring supplies to Mr. Hussein.

As American forces closed in, two Iraqis in the hut tried to flee, but were caught. American officials said they had not yet been able to identify them or their connection to Mr. Hussein. Mr. Hussein's hide-out was a shaft just wide enough to hold a man. General Odierno said a plastic foam trapdoor covered the mouth of the narrow hole. A rug had been placed on top of that and covered with dirt, bricks and other rubble to try to conceal it. An air vent had been built into the hole.

When troops opened the lid to the hide-out, they found Mr. Hussein alone, looking "bewildered" and "very disoriented," General Odierno said. He had a knife, a pistol and a suitcase containing $750,000 in American $100 bills. He offered no resistance, identified himself and was very quiet, military officials said.

Analysis: This approach is nothing new for anyone who's studied the theories of Col. John Boyd, an Air Force officer who I think is one of the most brilliant men of the 20th Century. Boyd wanted to know why American fighters could consistently beat Russian fighters in the Korean War, despite some the Russian MiG's advantages in speed. What Boyd found was that the American fighter was more maneuverable, thus enabling it to transition from maneuver to maneuver faster than its opponent. Over the course of an air engagement, this meant that the American pilot could gain the upper hand by being one step ahead of his enemy. And with training, he could learn to think faster than his enemy, exploiting the greater maneuverability of the F-86 to best his MiG opponent every time. Boyd called this thinking/maneuver cycle the "OODA loop", for "Observer, Orient, Decide, Act". The OODA loop is perhaps the best theoretical paradigm for understanding decisionmaking at the tactical, operational and strategic level.

In Iraq, Saddam had built a very tight OODA loop for himself. He was able to observer, orient, decide and act faster than the U.S. intelligence and military apparatus chasing him, and for a while, it looked like the mouse might forever evade the cat. But the U.S. organization evolved, and pared down its OODA loop to the bare essentials. It shared intelligence to enable the process, and built a tactical force capable of moving quickly after a decision to attack. On Dec. 13, the result of these changes became clear. Ultimately, American forces caught Saddam because they got inside his OODA loop, and acted before Saddam could react by moving to another hide site.
posted by Phillip Carter at 09:38

 
Sometimes, the media and the military get along

The Washington Post passes along an anecdote about Michael Weisskopf, a Time reporter who was wounded in Iraq by a grenade tossed inside his vehicle. The Army has decided to let Mr. Weisskopf take advantage of its expert medical care at treating these kinds of wounds, and to be admitted to Walter Reed Army Medical Center -- a very unconventional move for someone who's not in uniform. The Army's medical team at Walter Reed is the best in the world when it comes to dealing with combat injuries, such as lost limbs. Here's how it went down:

... Civilians who aren't veterans normally don't get admitted to Walter Reed, but several of Weisskopf's colleagues, friends and family members went to bat for him.

The deal was sealed after his lifelong friend, WTOP commentator Mark Plotkin, contacted D.C. Del. Eleanor Holmes Norton, who called acting Army Secretary Les Brownlee and got the okay. Norton said Weisskopf "acted heroically" in trying to throw a grenade out of the Army Humvee he was in, "and the Army saw it that way, too. The secretary made it clear that he saved the lives of [two] soldiers" who were also in the vehicle.

Many criticized the "embedding" program because they predicted that reporting would become jaundiced by the camaraderie that developed being journalists and soldiers. Maybe... it's only natural to bond when you share dangers like combat. But I'm proud of Mr. Weisskopf, for trying to get rid of the grenade, and for not just being a bystander. I'm also proud of the Army for seeing past its rules to do the right thing.
posted by Phillip Carter at 07:52

 
Trying Saddam --
Which court will hear his case, and what charges will he face?

I have an article which appears in today's edition of Writ, Findlaw.Com's online legal magazine, which discusses the possible forums for trying Saddam Hussein and the likely charges he will face. It's almost certain that Hussein will be tried by the Iraqi Governing Council's tribunal, but it's unclear whether that will be the only trial he faces, or what charges he will face before that body. Also, I think that Iraq may pursue some sort of Truth Commission down the road to learn the fate of those who perished under Saddam.

Update I: The Washington Post reports that Hussein will likely face trial by the spring. Iraqi prosecutors -- generously aided by American advisors -- are rushing to bring together a case that has been years in the making. However, there is some tension between the U.S. and Iraqi authorities, who are most concerned with interrogation and trial respectively.

One of the architects of the tribunal, Salem Chalabi, said political leaders and legal specialists had already begun discussing the best prosecutorial strategy to employ against Hussein. Chalabi said there was growing agreement that Hussein should be charged with perhaps only a dozen specific atrocities in an effort to keep a trial from bogging down. The charges would include the use of chemical weapons against ethnic Kurds in 1988, the execution of prominent Shiite Muslim clerics and the killing of hundreds of Sunni Muslim tribesmen after a coup attempt, he said.

The political leaders and court officials said they would be able to accomplish two key tasks required to start a trial -- constructing a secure detention facility and hiring judges, prosecutors and investigators -- over the next three to four months. "We'll be ready soon," Chalabi said. "We're moving very quickly."

That timetable is significantly faster than American officials had anticipated, increasing the chances of a dispute between Iraqi leaders eager for justice and U.S. intelligence officials, who hope to elicit detailed information from Hussein about weapons of mass destruction, links to international terrorism and the ongoing insurgency.

Depending on Hussein's willingness to talk, intelligence analysts said, interrogations could continue well beyond the spring. The U.S. occupation authority also is reluctant to hand Hussein over to the Iraqis too quickly, wanting to ensure that the new court's staff and detention facilities are ready to weather the international attention that will surround the former president's case.

More to follow...

Update II: The LA Times reports on some of the intel that American interrogators have been able to squeeze out of Saddam. This is interesting stuff, and it will certainly help American forces effectively target the Iraqi insurgency. I find it ironic that Saddam is willing to squeal on his comrades so willingly, but he's clearly not a man of moral courage.

Because interrogators had spent less than 24 hours questioning the deposed Iraqi leader, they had only just begun converting clues gleaned from Hussein into military operations aimed at eliminating insurgent cells, said Army Capt. Aaron Hatok, a spokesman for the 1st Armored Division, which is responsible for American troops in Baghdad.

The circumstances in which Hussein was discovered, in a dirt hole with no means of communication, raised doubts about the extent to which he might have been directing attacks on U.S. troops.

But Brig. Gen. Mark Hertling, commander of the 1st Armored Division, said he believed Hussein was in some way coordinating insurgent cells.

The general, in an e-mail exchange with a Washington-based Los Angeles Times reporter, said the information culled from Hussein and from documents he had with him confirmed several theories American intelligence analysts had already been pursuing.

Hertling said the 1st Infantry will use other newly gathered intelligence "to further connect the dots of cells that operate in Baghdad." He said the next phase will be working with the Iraqi police to hunt down car theft rings in the capital to help restore security there.

Update III: CNN.Com picked up my column from Findlaw.Com, so now it's going to get some more airplay. Now if only they'd ask me to do on-camera commentary...

Update IV: President Bush appears to have made up his mind about Saddam Hussein's guilt, and the appropriate punishment for him. This comes as no surprise, given President Bush's history as governor of Texas and well-known views on capital punishment. But I might expect a bit more diplomacy and discretion from the President, lest we appear too vengeful at this important point in history.

"I think he ought to receive the ultimate penalty ... for what he has done to his people," the president said. "I mean, he is a torturer, a murderer, they had rape rooms. This is a disgusting tyrant who deserves justice, the ultimate justice. But that will be decided not by the president of the United States but by the citizens of Iraq in one form or another."

posted by Phillip Carter at 07:37

 
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