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

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Dispatch from Afghanistan

David Adesnik at Oxblog relays a thoughtful letter from an American Army officer currently deployed to Afghanistan. I wasn't privy to the letter so I can't vouch for its authenticity, but it looks authentic. Among other things, the writer lets us know that we have unfinished business in Afghanistan, and that thousands of our sons and daughters remain committed there.

Soon after arriving at what one Army spokesman called “the most evil place in Afghanistan,” my platoon was involved in the largest firefight since Operation Anaconda in March 2002. During a battle that raged intermittently for almost 12 hours, we destroyed close to 40 “anti-coalition militants,” but suffered one very painful American casualty. PFC [name deleted], a 19-year-old soldier in my platoon, died from sniper fire while cresting a hill near Lozano Ridge. Coping with the loss of one of our own was the toughest mission my platoon faced during the last 5 months. Men cited for their bravery in the fight were torn by guilt and self-doubt and many still suffer from nightmares. Fortunately for the platoon, we immediately returned to the front lines after a brief period of mourning. After a few weeks of relative calm, we had another big fight south of Shkin on October 25th. We lost no men in our platoon, but had several friendly casualties in a sister unit. Again, my men impressed me with their courage under fire and professional competence. I feel fortunate to have had the opportunity to see my men change over 9 months- watching them train last spring and then execute the same drills with deadly efficacy in combat. Leading my men in combat has been the most satisfying and challenging experience in my career.

posted by Phillip Carter at 14:32

 
Semper nice?
A kindler, gentler Marine Corps emerges to win hearts and minds

The Wall Street Journal has a thoughtful piece today on the training by Marines at Twentynine Palms in the California desert for Iraq, and how such training differs from what most people would expect of this fighting force. The Marines are certainly training for war, and how to kill the enemy when necessary. But they're also training for something less than war -- how to secure and stabilize the nation of Iraq with their iron fist wrapped in a velvet glove.

TWENTYNINE PALMS, Calif. -- On a bright winter afternoon in California's high desert, Staff Sgt. Adam Walker gathered his platoon's newest Marines to give them their marching orders for when they get to Iraq: Be nice.

"That's hard for Marines," Staff Sgt. Walker told the young grunts, just four days out of infantry school. "What are you taught in boot camp? Kick ass and kill. That aggressiveness is not going to win in Iraq."

The First Marine Division fought its way from Kuwait to Baghdad last spring, and the first half of the force, some 8,000 Marines including Staff Sgt. Walker's platoon, is slated to return to Iraq in the coming months. They'll likely replace Army units occupying the hotspot city of Fallujah and the rest of Al Anbar province, a volatile Sunni Muslim-dominated area between Baghdad and the Syrian border.

For months, Marine commanders in the U.S. have watched from afar as American and Iraqi casualties have mounted, and they think they know where the Army has gone wrong. So before they ship out, the Marines are undertaking what amounts to a massive deprogramming campaign for their own troops. Put simply, they're teaching them to ask questions first and shoot later.

The plan is a risky one, based on the assumption that even in the areas most hostile to the U.S.-led occupation, local residents can still be won over if American troops treat them with more dignity, patience and understanding. And, the theory goes, as popular support for the U.S. grows, popular tolerance of the armed resistance will fade.

"The vast majority of people just want peace, security, jobs, electricity and the basic things that any people would want," says Lt. Col. David J. Furness, the Marine division's operations officer. "I think we can appeal to that."

Update: Tom Ricks has a good story on the same subject in Wednesday's edition of the Washington Post. There are a couple of great quotes in the story which sum up exactly what's going on here:

. . . speaking on the condition of anonymity, other Marine officers criticized the Army approach.

"I'm appalled at the current heavy-handed use of air [strikes] and artillery in Iraq," one said. "Success in a counterinsurgency environment is based on winning popular support, not blowing up people's houses."

* * *
Some Army officers in Iraq said the Marines' plan shows they are simply trying to capitalize on lessons learned in Iraq.

"I like the Marine approach, and I think it'll succeed," said Army Lt. Col. David J. Poirier, military police commander in Tikrit. "I love our Army, and I will not criticize it, but war is not free of mistakes, and I believe that some of the insurgency is due to families acting out against American forces for deaths occurring as a result of collateral damage."

For what it's worth, the Marine Corps has always been on the cutting edge of counter-insurgency doctrine. They invented the way America fights its "small wars", as Max Boot reports in his book Savage Wars of Peace. The Marine Corps led the way in transforming themselves into a "3rd Generation" force, and have also pioneered much of the thought on "4th Generation" warfare. It does not surprise me that the Marines are willing to put some of those ideas into action.
posted by Phillip Carter at 06:00

 
The latest mud to hit Wes Clark: he's anti-Semitic
Even the NY Times can't resist the temptation to print such drivel

Last week, Joel Mowbray launched a mud salvo against retired Gen. Anthony Zinni, whom he accused of being anti-Semitic. Gen. Zinni, a former commander of CENTCOM, has recently criticized the "neo-conservative" policy makers in the Bush Administration for their foreign policy decisions (which Zinni was a part of for a while as Secretary Powell's envoy to the Middle East peace process). Mowbray thinks "neo-con" is really just code for "Jewish", because of high-profile Jews in the administration like Paul Wolfowitz and Douglas Feith. Here's a short bit of his argument:

Technically, the former head of the Central Command in the Middle East didn’t say “Jews.” He instead used a term that has become a new favorite for anti-Semites: “neoconservatives.” As the name implies, “neoconservative” was originally meant to denote someone who is a newcomer to the right. In the 90’s, many people self-identified themselves as “neocons,” but today that term has become synonymous with “Jews.”

And if anybody should know better, it’s Gen. Zinni. It is well-known that those who are labeled “neocons” within the administration—whether the number-two official at the Pentagon, Paul Wolfowitz, or undersecretary of Defense Doug Feith—are almost always Jews.

Sadly typical is a Business Week article this May that identified Wolfowitz, Feith, Defense Policy Board member Richard Perle, former Reagan administration official Ken Adelman and Weekly Standard editor William Kristol—all Jews—as “neocons,” yet Cheney and Secretary of Defense Donald Rumsfeld—neither one Jewish—as simply “key allies.” Policy beliefs and worldviews were not different between these two groups; only religion distinguishes them.

Given that the “neocons” do not control the Departments of State or Defense nor the National Security Council—gentiles all head those agencies—and given that the White House is clearly run by non-Jews, how is it that Zinni claims that the “neocons” were responsible for the U.S. liberating Iraq? As he explains to the Post, “Somehow, the neocons captured the president. They captured the vice president.”

Comes now David Brooks, new center-right columnist for the New York Times, with a new salvo of mud directed at retired Gen. Wesley K. Clark. Brooks picks up the argument right where Mowbray leaves off, extending it to cover Gen. Clark and his criticisms of the neo-cons.

Theories about the tightly knit neocon cabal came in waves. One day you read that neocons were pushing plans to finish off Iraq and move into Syria. Web sites appeared detailing neocon conspiracies; my favorite described a neocon outing organized by Dick Cheney to hunt for humans. The Asian press had the most lurid stories; the European press the most thorough. Every day, it seemed, Le Monde or some deep-thinking German paper would have an exposé on the neocon cabal, complete with charts connecting all the conspirators.

The full-mooners fixated on a think tank called the Project for the New American Century, which has a staff of five and issues memos on foreign policy. To hear these people describe it, PNAC is sort of a Yiddish Trilateral Commission, the nexus of the sprawling neocon tentacles.

We'd sit around the magazine guffawing at the ludicrous stories that kept sprouting, but belief in shadowy neocon influence has now hardened into common knowledge. Wesley Clark, among others, cannot go a week without bringing it up.

In truth, the people labeled neocons (con is short for "conservative" and neo is short for "Jewish") travel in widely different circles and don't actually have much contact with one another. The ones outside government have almost no contact with President Bush. There have been hundreds of references, for example, to Richard Perle's insidious power over administration policy, but I've been told by senior administration officials that he has had no significant meetings with Bush or Cheney since they assumed office. If he's shaping their decisions, he must be microwaving his ideas into their fillings.

Analysis: I thought Mowbray's column was a slanderous form of manure when I read it, and I still feel that way. I even opined in a group discussion that "Next thing you know, they'll use this slur against Wes Clark." I didn't think that would actually come to pass, since there's nothing in the record to suggest that either Gen. Zinni or Gen. Clark is an anti-Semite. And for what it's worth, I think Josh Marshall's right that the neo-cons deserve some criticism for mismanaging our foreign policy. Indeed, in all of the reports I've read on both men, the exact opposite is true. Gen. Zinni did yeoman's work as commander of CENTCOM, as described in The Mission by Dana Priest. And he did great work as Secretary Powell's envoy to Israel and Palestine, at a time when neither side wanted to talk. Similarly, Gen. Clark has evidenced a particular sensitivity to Jews and other persecuted peoples (e.g. the Kosovar Albanians) while in uniform. (Arguably, the Kosovo War was about exorcising U.S. and European demons for their collective failure to act during the Holocaust.) Maybe that's because he's half Jewish? Gen. Clark's original last name was Kanne -- his father Benjamin Kanne was Jewish, and he subsequently was raised as a Protestant who converted to Catholicism in Vietnam. I don't think Clark is truly the self-loathing type, and I don't think he's an anti-Semite. But this is convenient mud for conservatives who want to tar two men before the Democratic party.

Anti-Semite is one of the slurs du jour in American politics. It's like "racist" or "sexist" or "former drug addict" -- it instantly tars a person and taints everything they've ever said. And it doesn't have to be proven, since the existence of anti-Semitism is presumed in so many bastions of American society. (Including, I might add, the American military.) Its use reminds me of the old political joke. One political operative says to the other: "Let's just say the guy sleeps with pigs." The other says "But that's not true." The first operative, who I'll name Karl, says "Who cares? The rumor will stick, and he'll spend the rest of the campaign trying to explain that he doesn't sleep with farm animals."

I'm not so naive as to think that such slander has no place or history in politics. It's a dirty business, and anyone with a thin skin should stay out of politics. But the irony here is that the neo-con's defenders are now committing the same bad act with with the neo-cons themselves are charged -- distortion of the facts in order to make an argument. Granted, all the neo-con defenders are doing is bending the record to make a baseless charge of anti-Semitism, while the neo-cons themselves distorted the facts in order to launch a war. But the parallel is still there. It's like one of my law professors says: "When the facts and the law aren't on your side... that's when you really get creative."

Update I: Mark Lewis puts it more directly on his site: "Clark = Anti-Semite??? Or perhaps David Brooks = Jackass." I'll go for the latter. Mark also points us to Josh Marshall's comments on the matter. Josh has written some great stuff on neo-cons and their influence on contemporary American foreign policy, so his commentary is worth reading.

Update II: Kevin Drum adds his voice to the fray, along with Mark Kleiman. I imagine this will be an issue discussed tomorrow night by Wes Clark during his "wireside" chat with several notable bloggers.
posted by Phillip Carter at 05:50

 
Accidents exact a heavy toll from America's military

The Los Angeles Times reported yesterday on one of the largest problems faced by America's military: the rate at which accidents kill or injure soldiers, and the reasons for these accidents. If you've been following the Iraq casualty announcements, you'll know that a staggering number have died as the result of non-combat wounds. The Times reports that this is nothing new, and that accidents have taken thousands of lives over the last two decades.

The recent increases occurred as the U.S. fought wars in Afghanistan and Iraq and troops found themselves in treacherous conditions and unfamiliar terrain. Nonetheless, most fatal accidents in the last three years occurred in the United States. In fact, half the fatalities happened in private motor vehicles — exacting a high price in lost soldiers and increased health-care costs.

For a generation, accidents have proved far more deadly than combat or terrorism. Since 1980, more than 20,000 military personnel have died in accidents while fewer than 1,000 have perished in battle, Defense Department figures show.

By its nature, military service is dangerous. Those who enlist do so with the expectation that they may be put in harm's way.

Nevertheless, the military had been steadily reducing its losses due to accidents, cutting its annual fatality figure by 56% between 1991 and 1998. But the reductions stopped the following year, even as private sector companies with high-risk activities, such as commercial airlines, continued to make impressive strides in reducing accidents. With the military rates climbing again, the magnitude of the losses has drawn concern at the highest levels. In May, Defense Secretary Donald H. Rumsfeld challenged the heads of the services to cut the number and rate of accidents by half within two years.

"World-class organizations do not tolerate preventable accidents," he said. "These goals are achievable…. We owe no less to the men and women who defend our nation."

Analysis: This is a really tough nut to crack. Training for combat must be somewhat dangerous in order to approximate the risks and circumstances faced in combat. Commanders learn to manage risks in their operations -- both safety risks and operational risks. But it's an inexact science at best, and it's very hard to find the balance between realistic training and safe training. Factors such as fatigue, maintenance, weather, and terrain often make this very tricky. It's even harder in combat, where soldiers are forced to go-go-go in order to get the mission done, at the cost of proper maintenance, rest plans, etc. It takes an extremely disciplined force to manage this kind of risk while simultaneously pursuing the mission in the most effective and efficient way possible.

The bottom line is this: deaths caused by accidents are generally preventable deaths (see this essay of the same name), and as such, they're a real tragedy when they occur because they didn't have to occur. Deaths in combat happen, and you're never quite sure you can prevent them because the enemy gets a vote too and combat is chaotic by nature. We may never be able to reduce this number to zero, just as we're not able to stop all fatal traffic accidents in the U.S. But it's a metric we ought to be concerned about for three reasons. First, America's sons and daughters in uniform are a precious resource, and we should worry about any threat that could take them from us. Second, accidental deaths/injuries take combat power (soldiers) out of the fight, and we can't afford those losses. Third, a high number of such accidents is an indicator of other problems in the force, such as deferred maintenance, poor rest plans during continuous operations, poor drivers' training, etc.
posted by Phillip Carter at 06:00

 
India and Pakistan take tentative steps to a lasting peace

One of the biggest news stories of this past week was buried inside the three major newspapers I read, but it deserves mention. The Los Angeles Times reports that Indian Prime Minister Atal Behari Vajpayee had a one-on-one meeting in Pakistan yesterday with Pakistani President Pervez Musharraf, as part of Vajpayee's visit to Pakistan for a regional meeting. The meeting comes as the latest in a series of peaceful overtures between the two nuclear adversaries.

There were no immediate details on the substance of the Vajpayee-Musharraf talks, which lasted about an hour.

Earlier, Indian Foreign Minister Yashwant Sinha had described the planned encounter as a "courtesy call." But Pakistani Information Minister Sheik Rashid Ahmed predicted in an interview that the two leaders would agree on a framework for future negotiations between India and Pakistan on a range of issues.

"I think the meeting will be successful, in a positive direction, and there will be something on a composite dialogue," Ahmed said, using a diplomatic phrase for direct talks on numerous issues, not only the disputed territory of Kashmir.

* * *
The last direct peace talks between India and Pakistan ended in July 2001, when Vajpayee and Musharraf came close but failed to agree on a timetable for negotiations at a summit in Agra, India.

Analysis: I'm not as smart on South Asian issues as I should be, considering its potential for war in the next decade. (See RAND analyst Chris Fair's article in the Atlantic Monthly predicting that India/Pakistan will be the source of 2 out of 10 major conflicts in the next decade.) But whenever I see some news like this, I think it's generally a good thing. For whatever it's worth, we do not want a war on the Indian sub-continent, and it's good news for the United States when two regional powers can manage their conflicts with diplomacy instead of force. It would be great to see some sort of strategic framework evolve from these high-level talks, or even some bilateral compact. But at least they're talking, and that's a good sign.

Update: CNN reports that "history has been made", and that India and Pakistan have agreed to a diplomatic framework which will guide future talks between the two nations over the disputed region of Kashmir.
posted by Phillip Carter at 05:57

 
Happy New Year: Intel Dump will take a holiday until January 5, 2004. Until then, have a safe and happy New Years celebration, wherever you're at.
posted by Phillip Carter at 13:32

 
Tearing down the wall between spooks and cops

Stewart Baker, a Washington attorney who used to be GC for the National Security Agency, has an excellent essay in Slate wherein he argues that we have invested too much in separating law enforcement from intelligence in the name of civil liberties. This "wall of separation" grew up after various agencies abused various groups' privacy during the 1960s and 1970s, and was thought to safeguard citizens from the more invasive forms of surveillance used in the national security world. Unfortuately, the result has been that good intel could not be passed onto law enforcement agencies. And that, in turn, has handcuffed America's cops in dealing with terrorism, with deadly results.

. . . the source of this tragedy was not wicked or uncaring officials. The wall was built by professionals who thought they were acting in the country's and their agency's best interest. They were focused on the hypothetical risk to privacy if foreign intelligence and domestic law enforcement were allowed to mix, and they worried that courts and Congress would punish them for putting aside these theoretical concerns to combat a threat that was both foreign and domestic. They feared that years of successful collaboration would end in disaster if the results of a single collaboration could be painted as a privacy scandal, so they created an ever-higher wall to govern operations at the border between domestic law enforcement and foreign intelligence. As drafted, the rules technically allowed antiterrorism investigators to do their jobs—if the investigators were sufficiently determined and creative. For a while they were, but the FISA court scandal sapped their determination and finally choked off any practical hope of getting the job done.

The second lesson is that we cannot write rules that will both protect us from every theoretical risk to privacy and still allow the government to protect us from terrorists. We cannot fine-tune the system to perfection, because systems that ought to work can fail. That is why I am profoundly skeptical of efforts to write new privacy rules and why I would rely instead on auditing for actual abuses. We should not again put American lives at risk for the sake of some speculative risk to our civil liberties.

And the final lesson? Perhaps it isn't fair to blame all the people who helped to create the wall for the failures that occurred in August of 2001. No one knew then what the cost of building such a separation would be. But we should know now. We should know that we can't prevent every imaginable privacy abuse without hampering the fight against terror; that an appetite for privacy scandals hampers the fight against terror; and that the consequence of these actions will be more attacks and more dead, perhaps in numbers we can hardly fathom.

The country and its leaders have had more than two years to consider the failures of August 2001 and what should be done. In that time, libertarian Republicans have joined with civil- liberties Democrats to teach the law enforcement and intelligence communities the lesson that FBI headquarters taught its hamstrung New York agent: You won't lose your job for failing to protect Americans, but you will if you run afoul of the privacy lobby. So the effort to build information technology tools to find terrorists has stalled. Worse, the wall is back; doubts about legal authority are denying CIA analysts access to law enforcement information in our new Terrorist Threat Integration Center. Bit by bit we are recreating the political and legal climate of August 2001.

And sooner or later, I fear, that August will lead to another September.

Analysis: I wish Mr. Stewart was overstating the case here, but I don't think he is. First, a cursory glance at his c.v. (which includes a J.D. from UCLA Law School) will tell you that he knows his stuff. Second, the Senate Select Committee on Intel has come to the same conclusion -- that this wall of separation handicapped America's government in detecting and interdicting the 9/11 hijackers. Third, not enough has been done to increase information sharing between public agencies, both horizontally (think CIA-FBI) and vertically (think FBI-NYPD). We're still nowhere near the day where the local police officer can reach into an intel database to input his observations from the street, or where he receives actionable intel from above. Or even where first responder agencies in the same county can talk on the same radios! This wall of separation continues to impede our anti-terrorism efforts, along with the bureaucratic walls which separate federal, state and local agencies.

Despite the billions we've spent on homeland security since 9/11/01, we may not have achieved much of a real increase in security because of our failure to fix this area. We've won some tactical battles overseas in the war on terror, and we've tightened some important areas of our domestic security net (like port security). But intelligence is what drives operations, and we have not yet created the intelligence or information architecture yet to drive domestic anti-terrorism operations. Until we do, we will be vulnerable to an enemy who can move faster than the flow of information between the FBI and the CIA, or between the CIA and the Los Angeles Police Department.
posted by Phillip Carter at 13:32

 
Winning hearts and minds in Iraq: Here and here are two ways the U.S. Army is working to earn the trust of Iraqi professionals and citizens. I wish I could say these were unique anecdotes, but I've seen scores of similar stories in e-mail passed among my friends from the Army. Our soldiers are doing good work over there, despite running guerilla conflict.
posted by Phillip Carter at 12:36

 
Israeli war dames

Mark Lewis points to an article in the Washington Times highlighting the designation of an mixed-gender infantry battalion in the Israeli army. Israel is one of a few Western nations to have used women as infantry (as opposed to support troops), and it has often been used as a point of comparison by those who would have women serve in the American infantry. The Israeli army constituted these units out of necessity -- its all-male infantry force structure couldn't stretch to do all of the missions. Mark's got some great comments on the issue, which reflect his experience in the Army's elite Ranger battalions and current engagement with Army personnel policy.

Hoping to relieve units stretched thin by the Palestinian uprising, the army created predominantly female companies three years ago to patrol the border for drug smugglers and the rare terrorist infiltrator. Only men served on the more dangerous Lebanese border and in the Palestinian territories.

* * *
Israeli army doctors recommended in October that women be barred from service in combat units on the basis of medical studies showing that they are less able than men to lift heavy objects and carry out sustained, strenuous activities.

The doctors, however, said there was no objection to women serving in light infantry units along peacetime borders, as the Carcal company does, or as radar operators in intelligence units, where they have proved themselves on numerous occasions.

The United States bans women from ground combat units, which include artillery, infantry and armor. They may, however, serve on combat ships and aircraft. And they serve as military police, a job that in Iraq puts them close to counterinsurgency operations.

Carcal company, whose name is Hebrew for wildcat, has a 2-1 ratio for women to men and requires women to sign on for an extra year of service. The four-month boot camp includes training in urban warfare and 20-mile stretcher marches, a regimen based on other infantry brigades.

Analysis: So far, the experiment seems to be working. The Israeli army has learned to deal with the two major issues facing gender integration of the infantry: physical capabilities, and unit cohesion. Solving the first problem is really a matter of setting mission-based performance standards and ruthlessly enforcing them. (Mark's comments re: Ranger indoctrination are relevant here) It comes down to the will of leaders to kick out women (or men) who don't meet the standard. Solving the second problem is much harder. The presence of both sexes in units adds a huge rock in the rucksack of every NCO and officer. But once again, tough leadership can make it work. If you built a strong, tough, cohesive unit through the crucible of training and shared sacrifice, you can make mixed-gender units work.

As Mark points out, women have done quite well in the U.S. Army during the recent Iraq and Afghanistan wars. Unfortunately, some have used anecdotal incidents like PFC Lynch's capture and sexual assault to argue that women don't belong in ground combat. Others have used pregnancy statistics and non-battle injury statistics to the same effect. But as I wrote a year ago in War Dames for the Washington Monthly, the wisdom of sending women into ground combat will be judged by mission accomplishment, not sideshows like these. Women performed well in this war, whether they were MPs, Apache pilots, intelligence analysts, truck drivers, or medics. (A female Army medic, SPC Billie Grimes, appears on the cover of Time's person of the year issue.) Mission accomplishment is the bottom line in combat, and our daughters in uniform proved their mettle this time around.

Where will this issue go from here? It's hard to tell. I'm not sure the American public or American military is ready to fully integrate women into the combat arms yet. But attitudes are a changin'. Mark points out a recent Army Times survey (subscription required) on U.S. military attitudes on the issue, which found that "More than two in three supported the idea of women serving in combat, though many suggested women should only get such assignments if they choose them."

Unfortunately, the Army Times survey also found that "Nearly half of women surveyed said they had been the victim of sexual harassment in the military." This last part deserves mention, because it lurks as one of the major unintended (but foreseeable) consequences of gender integration for the military. Arguably, the American military has become the model institution for racial integration in America. (See All That We Can Be by Charlie Moskos and John Butler for a great history of this issue.) Yet, the military still has extensive Equal Opportunity programs in every unit to manage racial issues and educate soldiers about them. Similarly, the military has made great strides in the area of gender integration, and is arguably more equal for women than any major police or fire department. But there's still a long way left to go. The sad truth today is that a woman in uniform has more to fear from her fellow soldiers than from the enemy when it comes to sexual assault, notwithstanding the hollow arguments from those who would use PFC Jessica Lynch's assault as an argument against women in the military. (I explain here why this argument is hollow.) As the American military embraces women more, it must also come to grips with the gender problems which affect every workplace in America. That will take time.

It may be another 5, 10, even 25 years before the military is fully ready to integrate women in every unit. We're not where the Israelis are (yet), where we have to push women forward because we need the soldiers on the front line. We're also doing pretty well, as shown by the performance of thousands of women in the second Gulf War. There are still issues, from problems at the Air Force Academy to sexual tension in units now deployed to Iraq. But ours is a heterogenous force, and there will always be issues in a heterogenous force. The key to overcoming these issues is leadership -- from the top, in the form of smartly written policies; and at the bottom, in the form of officers and NCOs who enforce standards. America's military is stronger than the differences between its soldiers, whatever those differences may be. Strong leadership, shared sacrifice, and professionalism have a remarkable ability to make these differences irrelevant, if not altogether non-existent. In time, our military will overcome its gender issues just as it did with its race issues.
posted by Phillip Carter at 12:35

 
New blueprints for military commissions

A friend just called to let me know that the Pentagon has announced some major changes to its design for the military commissions it plans to use to try men currently detained at Guantanamo Bay, Cuba. The changes are very interesting, and they probably presage the announcement of tribunals in the near future. Basically, the new rule establishes a right of review, similar to a right of appeal in the civilian system. Also, the Pentagon announced today the appointment of four men to serve as review panel members, similar to an ad hoc court of appeals:

· Griffin B. Bell, former U.S. attorney general and former U.S. circuit judge, U.S. Court of Appeals for the Fifth Circuit

· Edward G. Biester, judge, Court of Common Pleas of Bucks County, Pa., Seventh Judicial District; former Pennsylvania attorney general; and former member of the U.S. House of Representatives

· William T. Coleman, Jr., former secretary of transportation

· Frank Williams, chief justice of the Rhode Island Supreme Court.

The four will be commissioned as Army major generals for an approximate two-year term while serving intermittently in this role.

Review panel members are responsible for reviewing military commission proceedings. The review panel may consider written and oral arguments by the defense, the prosecution, and the government of the nation of which the accused is a citizen. If the review panel finds that a material error of law occurred, the review panel will return the case for further proceedings, including dismissal of charges. The review panel may also make recommendations to the secretary of defense with respect to the disposition of the case before it, including sentencing matters. Except as necessary to safeguard protected information, written opinions of the review panel will be published.

Analysis: These changes are big, but critics of the tribunals will probably say they don't go far enough. The lack of a formal review process has been a constant criticism of the tribunals since the original Presidential order was issued in Nov. 2001. However, this new rule doesn't set up an actual right of appeal, such as in the civilian courts. And it doesn't take the obvious course of action, which would've been to set up a right of appeal to the U.S. Court of Appeals for the Armed Forces. Nor does it give tribunal defendants a right of appeal to the U.S. Courts of Appeal or the U.S. Supreme Court. Consequently, I predict that these changes won't do much to assuage the concerns of those who have criticized our policies at Guantanamo Bay, and who have criticized the tribunals.

There may also be an Art. I/Art. III issue lurking here for defense attorneys to fight on appeal, since this new rule seems to pre-empt any possibility of jurisdiction for the civilian courts. That preemption may contravene Art. III, Sec. 2 of the Constitution, as well as various parts of Title 28, United States Code. Essentially, the Constitutional grants the courts jurisdiction over "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority". Sec. 2 goes on to give the Supreme Court appellate jurisdiction "In all the other Cases before mentioned . . . both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Art. I, Sec. 8 then gives Congress the power "To make Rules for the Government and Regulation of the land and naval Forces". Arguably, these Presidential (think Art. II) rules for the conduct of military tribunals clash with both Art. I and Art. III, because they (a) deprive the U.S. courts of jurisdiction and (b) exist outside the scope of the Congressionally-passed Uniform Code of Military Justice. I'm not smart enough (yet) to opine on that, but maybe Eugene Volokh or Eric Muller can help me out with an answer.

More to follow...

Update: Jess Bravin reports in this morning's Wall Street Journal (subscription required) that the real story here was the decision to replace Deputy Defense Secretary Paul Wolfowitz in the tribunal process with a retired Army JAG 2-star general. He also writes that at least one Gitmo defense attorney -- USMC Major Michael Mori, assigned to defend David Hicks -- is not impressed with these changes.
posted by Phillip Carter at 11:42

 
Dereliction of duty?
Did the National Guard deliberately unprepared Chinook helicopters into harm's way?

The St. Louis Post-Dispatch reports today that senior National Guard officers have claimed responsibility for the decision to deploy CH-47 "Chinook" helicopters to Iraq that lacked the most modern flare-dispensing systems available. That decision may be responsible for the missile attack which downed a Chinook last month in Iraq, killing 16 soldiers.

WASHINGTON - The deployment to Iraq of a combined Illinois-Iowa National Guard Chinook unit without required anti-missile defenses did not reflect an oversight or lack of coordination between the Guard and the Army.

Rather, it was the consequence of decisions made years ago by the Army to buy only a portion of the Guard's air defense equipment, senior Guard leaders say.

To save money, and assuming that Guard units were unlikely to be deployed in great numbers or face hostile action, Army officials ordered just 50 percent of the ALQ-156 flare-launching systems actually needed for the Guard's fleet of Chinooks.

"A conscious decision was made not to buy as many as we need," said Lt. Gen. Roger C. Schultz, director of the Army National Guard. "It's a decision that has some level of risk with it."

Analysis: This discussion came up on a military list-serv that I subscribe to, and it generated some good comments. I don't think this is "deliberate" or "intentional" in the legal sense. It's closer to negligence or recklessness though, insofar as the National Guard knew the Chinooks lacked the flare equipment and still sent them into a risky environment anyway. As an operational planner, I learned the difference between taking risks and taking gambles. This decision looks a lot more like a gamble. We rolled the dice that these Chinooks wouldn't face sophisticated surface-to-air missiles, and we lost.

It'd be interesting to see the risk calculus laid out for this decision, and some of the others which have affected Reserve Component (RC) readiness for Iraq. It's one thing to assume manageable levels of risk, i.e. we're not going to field this flare system until the unit is mobilized. It's another to assume away the risk entirely, which is what this situation looks like. I think it's irresponsible to identify a risk and the appropriate control measure for that risk, but then ignore the problem because of external fiscal constraints. The problem doesn't go away -- it just lurks around until the situation is ripe. Somewhere, this issue should have been inserted into an operational plan or a mobilization plan so that the Chinook unit was retrofitted with these flare devices before deployment to Iraq.

There are some things we can chalk up to budgetary constraints and fiscal realities; there are others that we can chalk up to bad priorities. This flare issue probably falls in the first category. Other issues, like the failure to field SINCGARS radios to RC units or the failure to field Interceptor body armor, fall in the "bad priorities" category. I *do* think it's derelict that we've let RC equipment fall so far behind Active Component (AC) equipment, but that we're pouring money into future-force projects like the Future Combat System. That's a case of bad priorities in my book. We can't afford to neglect the current fight in order to do R&D for the future fight. As it is, our force is one generation ahead of our allies, let alone our enemies. What's needed now is recapitalization and reinvestment in our current force, so that it has what it needs to get the job done in Iraq.

Also, I think this is another symptom of our mass-mobilization mentality (hat tip to Don Vandergriff and his work in Path to Victory for teaching me about this). If we were fighting WWIII and we had some mobilization time for the RC units, then theoretically, we could jumpstart our production lines and pour money into the defense industry in order to produce these things. The Pentagon could buy all the body armor, up-armored HMMWVs, desert BDUs, and other items it needs to outfit units on their way to Iraq. But that time doesn't exist for this war, because we've mobilized a lot of these units on short notice to meet a pressing need in Iraq. There just wasn't time to re-equip, re-train, and prepare units for deployment the way our doctrine was written. If they were lucky, they got a few days at the mob station, and that was it.

Unfortunately, it took a catastrophic tragedy like the Chinook shootdown to illuminate this problem. I'll bet there were lots of officers who knew about this issue, especially the pilots and commanders of this reserve Chinook unit in Iraq. But they weren't listened to until the consequences of this risk became known. Now, hopefully, their voices will be listened to.
posted by Phillip Carter at 07:33

 
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