INTEL DUMP

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

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Saturday, January 31, 2004
 
Time to start the tribunals... or something

The Washington Post's editorial board makes a pretty good argument today for why we need to give some kind of legal process to the men we currently hold as enemy combatants in the war on terrorism -- both in the U.S. and at Guantanamo Bay. Defense Secretary Donald Rumsfeld rightly points out that the goal of detaining these men is not to prosecute them -- but to glean intelligence in order to avoid future attacks. "Your first priority is not to prosecute them and punish them like they stole cars or something. . . . Rather, it was to get intelligence from them about the terrorist networks that they were a part of [and] prevent future attacks." Nonetheless, prosecuting them has some utility, and The Post's editorial states a good case for why that's so.
. . . The government has an obligation to glean as much intelligence as possible from the detainees at Guantanamo Bay, Cuba, and elsewhere, and the criminal justice model for dealing with such people is not sufficient. The war on terrorism is a real war, and not every fighter for the other side belongs in federal court.

But the war on terrorism is a different kind of war, with no end in sight, whose fighting blends elements of law enforcement, military power, diplomacy and intelligence. That difference puts on government an obligation to adapt without squashing important American values. The administration cites this war's difference as justification to free its hands to do things the government can't do either in a more classical conflict or in law enforcement. But the administration won't accept the corollary responsibility -- to develop rules that harmonize American conduct with the values this country attempts to promote worldwide. The military has never articulated coherent standards regarding which detainees will be tried or what will happen to those who are not tried over the long term. It has never specified the standards under which it reviews detentions nor declared who it is holding. It is not enough to observe, however truthfully, that under the laws of war, these people may be detained until hostilities are over. The laws of war are no more complete a framework for thinking about the detainees than is the criminal justice system. This week, for example, three teenagers were released from Guantanamo after lengthy detentions there.

There must be manageable, clear standards for considering these detentions. And the tribunals, for all the criticism they have taken, could be an important part of that. The more people who can be charged and tried in an orderly and fair fashion -- and the faster this process can get underway -- the better.


 
Great Americans

Saturday's Los Angeles Times reports on a naturalization ceremony conducted at Camp Pendleton yesterday for 207 military personnel -- nearly all veterans of Operation Iraqi Freedom or slated for deployment there in 2004. California Gov. Arnold Schwarzenegger spoke to the group of new citizens after their swearing-in, saying that "By choice you came to this land, and by choice you are fighting for this country, and that is extraordinary." I agree. Here's what a few of our newest citizens had to say on this occasion:
"There are so many things I want to do for this country," said Sgt. Delwin Ellington, 23, an immigrant from Jamaica. Ellington served in a combat unit in Iraq and will soon return as part of the nation-building effort.

* * *
Sgt. Andrew Crespo, 27, from Ecuador, said he decided to apply for citizenship after a Marine in his squad was killed in fighting near Nasiriyah and was given citizenship posthumously.

"I realized it was the right thing," Crespo said.

* * *
"It's my honor to be in this place," said sailor Kihyuk Hong, 24, from South Korea.

* * *
"This is a huge day for me," said Sgt. Javier Garcia, 23, born in Mexico. "Now I'm part of the Constitution."


Friday, January 30, 2004
 
Pentagon schedules meeting between enemy combatant and attorney

As if one big story today isn't enough, Jess Bravin of the Wall Street Journal (subscription required) reports this afternoon that the Pentagon has scheduled a meeting between Yaser Hamdi and Frank Dunham. Mr. Dunham is the federal public defender who took Mr. Hamdi's case and fought it in the U.S. District Court, 4th Circuit Court of Appeals, and who has now successfully petitioned for review of the case by the Supreme Court -- although he's never met his client. Hamdi has been held by the U.S. for nearly two years as an "unlawful enemy combatant", first at Guantanamo, and now at the military brig in Charleston, South Carolina. The move comes as the Supreme Court prepares to take up Hamdi's appeal, in a decision that court watchers think might redefine the legal framework of the America's war on terrorism.
Frank Dunham, the federal public defender in Alexandria, Va., said he would meet Yaser Hamdi at the military brig in Charleston, S.C., on 8 a.m. Tuesday. But the meeting will take place under conditions Mr. Dunham called onerous. A military officer will be present, the meeting will be recorded and Mr. Hamdi will be barred from discussing the conditions of his confinement, Mr. Dunham said.

"For all those reasons, the meeting will be very short and lacking much substance," Mr. Dunham said. But despite those restrictions, "it would be inhumane not to go down there and tell him what's going on." The public defender said that since the government considers anything Mr. Hamdi or others held as enemy combatants [says] to be classified, he would not be able to discuss anything Mr. Hamdi might tell him.

"If they burp, it's classified, so you can only discuss it with people who have a national security clearance," he said.

* * *
The Bush administration has opposed allowing prisoners it deems enemy combatants to meet with attorneys, contending that doing so would interfere with interrogations. But Justice Department lawyers have said they could permit such meetings after interrogators were finished with the prisoners.
Analysis: This is a major development. The administration has probably decided, as alluded to by this WSJ article, that it's all-or-nothing legal strategy was "unsustainable" in light of legal challenges that have reached the Supreme Court. In addition, I think the DoD and DoJ lawyers have advised their principals that the present course of action just doesn't make any sense. I find it plausible that Mr. Hamdi had some intelligence value immediately after his capture, and that there may have been a need for seclusion and interrogation then. But as a practical matter, I think those arguments have evaporated, and now the time has come to give this U.S. citizen some due process.

If Hamdi's truly an enemy combatant, fine. Lock him up in accordance with the 3rd Geneva Convention, let him send letters home and talk to the Red Cross, and hold up until the end of hostilities. If he's a criminal, then charge him with a crime. If he's something in between, then get Congress to make a law clarifying what that status is and what that status means in the way of legal consequences. But the ambiguity of Mr. Hamdi's situation has been the frustrating thing for many in the legal community, and it has gotten to be so problematic as to threaten the administration's legitimacy in the war on terrorism. You know this issue has gone too far when it can be used as a punchline on CBS's show "NCIS", or even by Whoopi Goldberg in her new television show. Legal clarity is important because it helps establish legitimacy, and the rule of law over the rule of men. The Pentagon's decision to set up a meeting between Mr. Hamdi and his attorney is a step in the right direction, and I applaud them for it.

Update: Jerry Markon's article on the Hamdi-Dunham meeting has one of the most colorful quotes I've seen from a defense attorney in the news lately. And what makes it even better is that it's not in one of the many celebrity criminal trials we have today. Here's what the FPD had to say:
Federal Public Defender Frank W. Dunham Jr. said he is unhappy that his meeting with "enemy combatant" Yaser Esam Hamdi will be scrutinized at the Charleston (S.C.) Consolidated Naval Brig. Dunham said he considered canceling the session because it violates the tradition of attorney-client privilege. But he decided to go forward because he has been pursuing the meeting for more than two years.

He said the military has banned any discussion of the conditions of Hamdi's confinement at military brigs in Virginia and South Carolina. "I'm not going to be able to talk to him about anything that's substantive to the case," Dunham said. "But I said if I had to go see this client buck naked with my hands on my ankles, I wasn't going to stand on the ceremony that I'm not going to go until the situation is perfect."
Let's hope the Defense Department doesn't make Mr. Dunham (or Mr. Hamdi) attend this meeting "buck naked with [his] hands on [his] ankles. But it's nice to see that the public defender would do so in that event.

 
ICC taps American lawyer for first prosecution

Jess Bravin reports in the Wall Street Journal (subscription required) that the International Criminal Court -- a body which the U.S. has disdained by backing out of the Rome Treaty -- has appointed an American attorney as its first prosecutor in a case against Ugandan warlords who used kids as sex slaves and soldiers.
The appointment of Christine Chung, a Harvard-trained lawyer who prosecuted street gangs, mob bosses and boxing promoter Don King during a 12-year career at the U.S. attorney's office in New York, underscores the controversy over Washington's stance even within American legal circles.

"I'm voting with my feet," Ms. Chung said. "The idea that the court is going to be prosecuting American soldiers trivializes the whole process."

Ms. Chung, 39 years old, has no prior experience with war crimes or international tribunals. But ICC Prosecutor Luis Moreno-Ocampo said he chose Ms. Chung as the best-qualified applicant to pursue the ICC's first case, a high-stakes effort that will shape the court's reputation.

Her former boss, U.S. Deputy Attorney General James Comey, described her as "a brilliant lawyer and a great prosecutor ... who will serve any tribunal well." But Mr. Comey declined to comment on the ICC or the U.S. government position toward it.

* * *
In choosing Ms. Chung, "Moreno-Ocampo is cleverly reaching out to the Americans to try to show them that the court is a valuable tool in foreign policy," said Harold Hongju Koh, a Yale law professor who was an assistant secretary of state in the Clinton administration. "They want to show that it's really a criminal court, not a place for political posturing."
Analysis: I think that's right. There is clearly a political imperative behind this appointment to bolster the ICC's legitimacy in the eyes of the American public. It's conceivable that the United States could rejoin the ICC if a change occurred in the White House, but that will only happen if the American public buys into the idea of these prosecutions. Given the limited jurisdiction of the court, and our ability to secure bilateral agreements for the protection of our soldiers overseas, I support the ICC. It makes a lot of sense to have a standing world body with the staff and resources to prosecute crimes like these, which really are crimes against humanity and the world.

It's also been true that American prosecutors have played a key role in many international prosecutions. Justice Robert Jackson's tenure as a prosecutor at Nuremburg was the most famous example of this. More recently, Pierre Richard-Prosper served as the lead prosecutor for the International Criminal Tribunal-Rwanda; he now serves as the Bush Administration's ambassador at large for war crimes. The American prosecutorial style is much different from that in inquisitorial systems around the world, and it is something these bodies often try to copy by bringing in American attorneys to lead and teach them. Amb. Prosper started as an assistant district attorney in Los Angeles; Ms. Chung has served for 12 years as an Assistant U.S. Attorney. In addition to their nationality, they bring a wealth of practical experience on how to fairly try a criminal -- and win. That's a very important thing. Ms. Chung's performance will set the tone and professional standards for future ICC prosecutions.

 
Going on the offensive in Afghanistan
A decisive -- and risky -- action to snare the leaders of Al Qaeda

Wednesday's Chigago Tribune (subscription required) broke a big story about a new offensive planned for the mountains of Afghanistan and Pakistan, wherein the U.S. will introduce large numbers of ground forces to hunt down and apprehend/kill the top leadership of Al Qaeda. The story was subsequently picked up by a number of other media, and its authenticity has been confirmed by Pentagon officials who say that they have a pretty good idea of where Osama is hiding. The basic idea is that we have been playing a cat & mouse game with Al Qaeda's top leaders for some time -- and the way we plan to win this game is to introduce a big tiger into the game, in the form of large American infantry formations.
U.S. Central Command is assembling a team of military intelligence officers that would be posted in Pakistan ahead of the operation, according to sources familiar with details of the plan and internal military communications. The sources spoke on the condition they not be identified.

As now envisioned, the offensive would involve Special Operations forces, Army Rangers and Army ground troops, sources said. A Navy aircraft carrier would be deployed in the Arabian Sea.

Referred to in internal Pentagon messages as the "spring offensive," the operation would be driven by certain undisclosed events in Pakistan and across the region, sources said. A source familiar with details of the plan said this is "not like a contingency plan for North Korea, something that sits on a shelf. This planning is like planning for Iraq. They want this plan to be executable, now."

* * *
The U.S. military plan is characterized within the Pentagon as "a big effort" in the next year. Military analysts had previously judged that a bold move against Islamic extremists and Osama bin Laden, in particular, was more likely to happen in spring 2005.

A series of planning orders-referred to in military jargon as warning orders-for the offensive were issued in recent weeks. The deadline for key planning factors to be detailed by the U.S. military was Jan. 21.

* * *
Thousands of U.S. forces would be involved, as well as Pakistani troops, planners said. Some of the 10,600 U.S. troops now in Afghanistan would be shifted to the border region as part of regular troop movements; some would be deployed within Pakistan.

"Before we were constrained by the border. Musharraf did not want that. Now we are told we're going into Pakistan with Musharraf's help," said a well-placed military source.
Analysis: A Pentagon spokesman essentially confirmed this story after the Tribune broke it, saying "We have a variety of intelligence and we're sure we're going to catch Osama Bin Laden and Mullah Omar this year." That's a big promise to make. I hope we have the goods to back this up, because I'd sure like to catch these guys too.

A couple of notes on this planned offensive. First, it incurs substantial amounts of operational risk, which will transform into political risk for the Bush Administration. Any offensive operation carries risk -- you are taking the fight to the enemy, and they will have an advantage on the defensive. Furthermore, we are planning this operation in extremely rough terrain where that defensive advantage will be enhanced, and we are planning to throw large amounts of ground forces into the mix. Anytime you send large numbers of troops into combat, you run the risk of large numbers of casualties. This too is compounded by the mountainous terrain and conditions, because it will make it tougher to evacuate wounded soldiers, as we found out in Operation Anaconda. Those operational risks will transform themselves into political risks for the President, because of the American public's traditional reaction to casualties. Of course, the public will likely accept these more readily than casualties in Iraq, because of the nature of our prey. If you asked the average American whether it's worth it to go after Osama, they will likely say yes. Nonetheless, a steady stream of casualties from Afghanistan in the absence of hard results (i.e. the capture/killing of Al Qaeda's top leaders) will not be good politically for the Bush Administration.

Second, one has to consider where the forces will come from for this operation. Every single infantry battalion in the active-duty Army has been deployed to Iraq or is on its way to Iraq, save those committed to Korea. Presumably, the forces for this Afghanistan offensive will come from the ranks of those already inside Afghanistan, as well as those soldiers who came back in 2003 and early 2004 from Iraq. That's going to have an effect on these soldiers, and depending on the amount of time they have for rest/retraining, it may have an effect on the mission too. On the other side of the ledger, these soldiers are combat-experienced veterans who probably won't need much retraining to fight in Afghanistan. But the administration is taking a risk by stretching these units so far, to the point where they may not be ready for the next threat -- whatever that may be.

My sense is that this mission is worth that risk -- the destruction of Al Qaeda is our raison d'etre in the war on terrorism. But in an election year, I think the American public will judge this mission its results. We'll see.

 
Compare:

Army Chief 'Adamantly Opposes' Added End Strength

WASHINGTON, Jan. 28, 2004 – The Army chief of staff "adamantly opposes" an end- strength increase to the size of his service.

Gen. Peter Schoomaker told the House Armed Services Committee today that an unfunded end-strength increase "puts readiness at risk, it puts training at risk, it puts modernization at risk, it puts transformation at risk – and that's why I'm resisting it."

Many in Congress believe the Army is stressed with worldwide operations. One proposal calls for adding two more combat divisions. Another calls for a 40,000-man increase in the Army, while other, more general proposals just call for end-strength increases.

Schoomaker agrees the Army is stressed, but believes it is a temporary spike and that any plus-up can be done with current resources. He said transforming the Army will result in manpower savings that can be plowed into the combat force. "What we are doing is to transform the Army simultaneous with meeting the security commitment of the nation," he noted.
with

Army to Restructure, Will Grow by 30,000

WASHINGTON, Jan. 29, 2004 – The Army will grow to 510,000 soldiers over the next four years as a temporary measure, a senior Army official said today.

The official briefed the press on background after Army Chief of Staff Gen. Peter Schoomaker told Congress Jan. 28 that Defense Secretary Donald H. Rumsfeld has authorized the Army to exceed end strength limits by 30,000. The increase is allowed under emergency authorities Congress granted the Defense Department.
Analysis: And once you're done scratching your head, then read Vernon Loeb's report on the subject in the Washington Post. It's not clear which end is up in this force structure debate, and who's for what position anymore. Everyone is "for transformation" -- that's like being "for children" or "for public safety" -- it's a meaningless cliche these days. Everyone's also for "efficiency" and "common sense" in managing the force -- which has been stretched by deployments to Iraq, Afghanistan and elsewhere in the war on terrorism. I have to admit that even I'm confused, and I follow this stuff pretty closely.

My guess is, based on Gen. Schoomaker's comments in his confirmation hearings last year, that he was the guy pushing the SecDef hard for these troop increases. He probably presented this increase as a fait accompli, because of the number of troops the Army had already kept on active duty due to stop-loss policies and the 160,000+ Army reservists now on active duty. Given those numbers, what's a little permanent authority to make it all legal and kosher?

Notwithstanding this executive decision by Secretary Rumsfeld, I see this as one of the major fights of the FY2005 defense budget process. In addition to the expected debates about current ops v. transformation funding, military construction, base closures, and missile defense, the House and Senate are going to grill the Pentagon hard over this issue. I predict that we'll see some net increase in end strength for the Army and Marines as a result, though it's not clear what conditions that increase will contain. It's possible that Congress could mandate an increase in nation building capabilities like Military Police, Civil Affairs and Special Forces, and that Congress could also mandate a review of the "total force concept" which splits certain functions between the active and reserve forces. More to follow...

Thursday, January 29, 2004
 
Dealing with Korea

Soyoung Ho, an editorial assistant at The Washington Monthly, has an interesting article up on Slate about the U.S. problem with North Korea -- written from the perspective of South Korea. The article is so poignant because it highlights the way that we have frustrated one of our staunchest allies via our foreign policy, and that we have made it harder to deal with North Korea because of the way we've dealt with South Korea lately.
Can the Bush administration solve the nuclear crisis alone? It can, but only if the White House wants to strike a half-baked deal to make the issue go away until after the November elections. Any viable long-term solution that includes a peace treaty and verified nuclear disarmament requires Seoul's full cooperation. Although China may be the biggest provider of fuel oil to Pyongyang, South Korea has the most economic cooperation with the North, including economic assistance, trade, direct investment in economic zones, tourism, rail and road links, sports and cultural exchanges, and visits to reunite separated families. Seoul can withhold badly needed economic aid to the North, a policy shift that could bring North Korea into line. Such a shift would be more in tune with the Bush administration.

China is, of course, an important ally in reaching an agreement with North Korea, but any final settlement will require a huge financial commitment, because North Korea will never give up its nuclear program unless it receives both a security guarantee and massive economic aid. China won't be responsible for all this economic aid, and it would be fiscally and politically infeasible for the United States to foot the bill in such a deal.

This is where South Korea comes in, picking up a big chunk of the tab. Michael O'Hanlon, an international security expert at the Brookings Institution and author of a book on dealing with a nuclear North Korea, said, "There can be no solution without South Korea since it is the most interested party, a close ally, and the country that would have to provide much of the aid and trade and investment and so forth in any deal."
Analysis: I'm dramatically understating the point when I say that it would be really good for the 6-party talks to resume and result in a workable agreement for the Korean peninsula. North Korea's possession of nuclear weapons (and chem/bio) is just one problem. The North Korean humanitarian crisis is deepening by the year, and it has very real consequences for the security and stability of East Asia. The same is true of North Korea's crumbling (crumbled?) infrastructure, economy, health care system, etc. Setting aside any political or ideological issues for the moment, North Korea physically sits on the edge of collapse. It has sat there for years, but there is no reason to think that it can do so indefinitely. Despite proclamations of juche (roughly translated as "self reliance") from Kim Jong Il, North Korea will eventually fall if it remains on this trajectory. It is in America's interest to ensure this doesn't happen -- but if that fails, we must be ready (with our allies) to manage the consequences.

 
SecDef allows Army to grow by 30,000

In testimony yesterday, Gen. Peter Schoomaker revealed that Defense Secretary Donald Rumsfeld had used some of his emergency authority to let the Army exceed its legally authorized "end strength" by 30,000 soldiers, in order to make ends meet for the Global War on Terrorism and the war in Iraq. The Washington Post reports on this surprising revelation, and what it might mean for the debate over force structure in the 2005 Pentagon budget process.
The increase, disclosed yesterday in congressional testimony by Gen. Peter Schoomaker, the Army's chief of staff, surprised members of the House Armed Services Committee, many of whom have been pressing for a larger Army.

Rumsfeld has resisted a permanent increase for months, arguing that a number of efficiency measures and restructuring moves could alleviate some of the stress on U.S. forces. But his approval of a temporary rise -- which does not require congressional action and which Schoomaker said would probably be needed for four years -- appeared to acknowledge that some relief is needed.

Schoomaker said the increase would make possible his plans to restructure the Army by expanding the number of brigades and creating more agile, deployable forces. The money, he said, would come from the $87 billion emergency spending bill for Iraq and Afghanistan that passed in November.

An aide to Schoomaker said after the hearing that the troop increase probably would be achieved through incentives to keep soldiers from leaving once their contracts expire and through "stop-loss" orders barring their exit.

Schoomaker also disclosed that he has ordered his staff to plan for how the Army, which is now replacing its forces in Iraq with an entire set of fresh units, would rotate another force of similar size into Iraq in 2005 -- and again in 2006. But other Pentagon officials said any decisions on the size of future rotations are months away.

Larry DiRita, the Pentagon's top spokesman, said Rumsfeld approved the troop increase within the past few days. DiRita said Rumsfeld acted under emergency authority approved by Congress and invoked by President Bush after the Sept. 11, 2001, terrorist attacks, allowing the lifting of personnel caps on the military services.
Analysis: This is a big turnaround for the Defense Department, which has adamantly refused to say it needed more soldiers for about the last year. Gen. Schoomaker came in as the SecDef's new Chief of Staff-designate with the idea that maybe we did, and he even said so during his confirmation hearings. Now, it appears that he persuaded someone inside the Office of the Secretary of Defense that the need for more soldiers was real, and the SecDef's office has bought off on that.

Of course, I think these numbers are somewhat arbitrary and meaningless. 30,000 will help, but it's a drop in the bucket compared to the steady stream of reservists we've had on active duty since Sept. 11, 2001. According to the Pentagon, the Army Reserve and National Guard had 164,416 reservists on active duty this week. These 30,000 will undoubtedly aid the Army, especially in maintaining certain key specialties like MI, MP, Aviation, SF, etc. But I still think the Army is stretched thin by the Iraq mission, and the need to mobilize this many reservists is a sign of that. If the Army is going to stay in Iraq until 2006, as Gen. Schoomaker says, the stretch is going to get much worse.

Wednesday, January 28, 2004
 
Kerry wins big in New Hampshire
What does the Kerry-Clark dynamic mean for veterans in America?

Sen. John Kerry (D-Mass) decisively defeated his Democratic rivals yesterday in the New Hampshire primary to move further ahead in the horserace that is this year's Democratic nomination fight. Politics is far out of my lane of expertise, so here's what the New York Times had to say in the way of political analysis this morning:
MANCHESTER, N.H., Jan. 27 — John Kerry has now done what none of his rivals for the Democratic nomination have yet come close to doing: He has won twice. Decisively. He has momentum, media, money and the ability to raise more, as well as a staff of experienced, disciplined operatives and a list of endorsements that are each growing by the day.

Howard Dean has now failed twice, decisively, in the states where he has worked hardest, with the voters who know him best, even among those who share his signature issue: opposition to the war in Iraq.

As the campaign shifts from an expectations game to a fight for real delegates, Dr. Dean needs to win somewhere. There were signs that he might leapfrog to states like Michigan and Wisconsin that vote later next month, then regroup for the big contests on both coasts on March 2.

As he was last week in Iowa, Senator John Edwards was the man in motion at the end of the race. Almost half the voters who chose him here did so in the past three days, an indication that he was gaining but ran out of time.

Mr. Edwards now heads to next week's contest in his native South Carolina a presumptive favorite son.

Gen. Wesley K. Clark skipped Iowa to campaign in New Hampshire almost exclusively for more than a month, hoping for a springboard against Dr. Dean, only to find himself competing against Mr. Kerry.

Senator Joseph I. Lieberman, who moved from his home in Connecticut to a condominium here, fell even flatter, in what he portrayed as a "three-way split decision," at the bottom of the pack. Both Mr. Lieberman and General Clark vowed to press on, though it is difficult to see just where they might catch fire.
Analysis: This isn't my area of expertise; I know about as much as any other educated American who reads the newspaper when it comes to domestic politics. So I want to focus on the dynamic between John Kerry and Wes Clark. I believe that Wes Clark essentially went down in flames when he belittled Kerry on CNN's Larry King Live. In his conversation with Sen. Bob Dole on that program, Clark denigrated Kerry's service as a junior officer, saying that he was a general and that this ought to count for more. Fair enough, there is a distinction between lieutenants and generals. But that's not a favorable distinction for most veterans, who looked upwards with disdain at their generals, while they often got to know their lieutenants and captains on much more favorable terms. Clark painted himself as an elitist with this comment to the veteran community whose support he needed so badly. It doesn't surprise me that large chunks of that group went over to the Kerry campaign.

For the larger American public, I'm starting to believe that military service is a fungible qualification. That is to say, for non-veterans (most Americans), military service is like a block that once checked, it doesn't matter that much. Both Wes Clark and John Kerry can say they were decorated Vietnam veterans -- war heroes if you like. The fact that one went onto serve 30 years in uniform is an impressive credential, but it may not matter to most Americans. Once you've checked the military service block, and you've checked the combat service block, other degrees of service aren't that important.

While I think military service (or service in the Foreign Service, Public Health Service, Peace Corps, etc.) is a necessary qualification for high public office, I don't think it's sufficient. Political experience, particularly in the trenches of Washington, counts more. And while most voters are willing to reward a man (or woman) for fulfilling his/her citizen's moral obligation to serve their country, they want to see more in the way of political/policy credentials than just that. After all, these guys are running for President, not Secretary of Defense. So in the bigger picture, I see the Kerry candidacy as a referendum of sorts on the Clark candidacy, and the idea that a general can swoop in, capitalize on public respect for the military, and win the presidency. Voters want more than just military credentials.

Tuesday, January 27, 2004
 
Law and terrorism: David B. Rivkin Jr. and Lee A. Casey, two senior lawyers who served in the Reagan and Bush I administrations, have a series of op-eds in this week's Washington Times that deserve a read. The first article deals with the power to detain enemy combatants, and the second with the President's power to wage war on terrorism. Though these authors don't speak directly for the administration, they do articulate the basic rationale of the administration on many of these subjects. So their op-eds are useful for understanding the reasoning behind what have been very controversial legal positions.

 
White House changes tack on Iraq casus belli

James Risen, who covers the intelligence beat and other shadowy things, reports in the New York Times today that senior administration officials were distancing themselves from the argument that Iraq definitely had weapons of mass destruction before the war. No such weapons have been found yet, which has made many uneasy about their support for the war which was based on this alleged possession WMD and the imminent threat of Iraqi nuclear weapons production.
The evolving position followed criticism of the intelligence reports about Iraq from the C.I.A.'s former chief weapons inspector, David A. Kay, comments that increased pressure on the C.I.A. and intensified the political debate in Washington over who was responsible for shaping the prewar intelligence that President Bush used to justify toppling Saddam Hussein.

While Republican leaders have focused on the C.I.A. and how it gathered intelligence, Democrats have called for a close look at how the White House used that information.

On Monday White House officials were no longer asserting that stockpiles of banned weapons would eventually be found.

Scott McClellan, the White House spokesman, told reporters en route to an appearance by President Bush in Little Rock, Ark., that the administration would wait for the weapons search team, the Iraq Survey Group, to complete its work before drawing any conclusions about the quality of the intelligence available.

But he said that whatever the group's conclusions, Mr. Bush had done the correct thing in deposing Mr. Hussein because Iraq was clearly working on chemical, biological and nuclear weapons.

"We know he had the intention, we know he had the capability," Mr. McClellan said. "And, given his history and given the events of Sept. 11, we could not afford to rely on the good intentions of Saddam Hussein."
Analysis: The administration never relied on WMD as its only reason for war. Indeed, it wasn't even the best legal argument that it offered. Pentagon and State Department lawyers agreed that the best legal argument for the war was Iraq's material breach of the 1991 cease-fire, along with various other resolutions since then. The WMD issue was mostly a political one, meant to persuade people for whom law wasn't good enough, and to answer the question of "why now?"

I was one of those people who thought we would find WMD when we had the 101st Airborne combing the Iraqi countryside, and when we had total reign over the country so the Iraqis couldn't play their shell game. Now I'm not so sure. It's theoretically possible that Iraq has hidden its WMD so well that we can't find them. But that's unlikely, given the enormity of the resources we've devoted to this task -- human teams, technical means, hyperspectral imagery, etc. It is hard to find the proverbial needle in a haystack. But WMD give off a bigger signature than a needle -- and we know what that signature is, and how to detect it. In any event, I feel like I was misled about the arguments for the war, which I then parroted to my friends and readers. And though I still support the war for other reasons, this news is upsetting.

Monday, January 26, 2004
 
Federal judge overrules parts of a major anti-terrorism law

The AP reports tonight on an order issued late last Friday by U.S. District Judge Audrey B. Collins, who sits here in Los Angeles, that effectively voids key parts of the federal law prohibiting material support to terrorists or designated foreign terrorist organizations. Those two laws, 18 U.S.C. 2339a and 2339b respectively, were first adopted in 1996 as part of the Anti-Terrorism and Effective Death Penalty Act, and more recently amended by the USA PATRIOT Act in 2001. Judge Collins devotes a good chunk of her decision to jurisdictional issues such as standing and justiciability. But the real meat of her order starts on page 24, with her consideration of the plaintiffs' motion on Constitutional grounds for summary judgment. On page 28 of her order, Judge Collins states the following:
Having considered the parties' arguments and the relevant law, including the rulings in [Humanitarian Law Project] I, the Court concludes that the term "expert advice or assistance," like the terms "training" and "personnel," is not "sufficiently clear so as to allow persons of 'ordinary intelligence a reasonable opportunity to know what is prohibited.'" [Citations omitted] Defendants [the Justice Department] have failed to adequately distinguish the provision of "expert advice or assistance" from the provision of "training" or "personnel" in a way that allows the Court to reconcile its prior finding that the terms "training" and "personnel" are impermissably vague, with a finding that the term "expert advice or assistance" is not.

* * *
The "expert advice or assistance" Plaintiffs seek to offer includes advocacy and associational activities protected by the First Amendment, which Defendants concde are not prohibited under the USA PATRIOT Act. Despitethis, the USA PATRIOT Act places no limitation on the type of expert advice and assistance which is prohibited, and instead bans the provision of all expert advice and assistance regardless of its nature. Thus, like the terms "personnel" and "training," "expert advice or assistance" "could be construed to include unequivocally pure speech and advocacy protected by the First Amendment" or to "encompass First Amendment protected activities." Humanitarian Law Project v. Ashcroft, ___ F.3d ____ (9th Cir. 2003) (finding the words "training" and "personnel" in 18 U.S.C. 2339b to be unconstitutionally vague under the First Amendment).
Analysis: Interestingly, Judge Collins only enjoined the Justice Department from applying these two sections of federal law to the plaintiffs at bar -- not to the entire Justice Department and any such prosecutions it may engage in across the country. That's not surprising, and it's probably the right legal outcome. But it does limit the scope of this ruling.

Second, it's important to understand the context of the laws being overruled here. 18 U.S.C. 2339a and 2339b were originally passed as part of the AEDPA in 1996. (Here's a summary of what AEDPA does -- it's a huge piece of legislation which changed a lot of stuff in federal criminal law.) Since their passage, they have become an important tool in the DOJ's arsenal for fighting global terrorism, because of the way that global terror networks depend on help to move men, materiel and money around the world. Obviously, the term "material support" is vague on its face, which is why the statute includes a list of those things which can count as "material support" for purposes of criminal prosecution. Sec. 805 of the USA PATRIOT Act (Public Law 107-56) added one more category to further illuminate the definition of material support: "expert advice and assistance". That is the part of the USA PATRIOT Act being held unconstitutional here by Judge Collins -- one line in a piece of legislation that stretches for 132 pages (in the PDF version that I have). Without a doubt, most headlines will misstate this part, and many more politicians will obscure this part as well in the service of their political agendas. But the legal fact is that Judge Collins invalidated one small part of the Patriot Act, and a part that marginally modified another law which had in place since 1996.

Third, it's important to understand the nature of this decision from a Constitutional perspective. Laws may be stricken down under the First Amendment when they unconstitutionally infringe on free speech. One way that laws may do that is by being too vague. In such a case, the terms of the law in question are so vague that Americans can't figure out what the law is actually trying to criminalize. The result is that speech is chilled, because rational people will err on the side of caution by not doing something that may subject them to prosecution. The idea here, expressed in Judge Collins' order, is that 18 U.S.C. 2339a and 2339b are so vague that these laws actually include behavior that's expressly constitutional. Any law which is that vague on its face is subject to being stricken on Constitutional grounds, and that's precisely what Judge Collins did in this case.

What will happen next? The Justice Department will likely appeal this to the Ninth Circuit. But given that court's recent ruling in the same matter, it's unlikely that such an appeal will be successful. Some have suggested that the Justice Department might cure this matter through the exercise of prosecutorial discretion. But the Supreme Court has said that an agency cannot cure an unconstitutional law in this matter, because that's beyond the scope of an executive agency's power. (See Whitman v. American Trucking Association) Only an act of Congress to amend this Act with Constitutionally survivable language will work. The President has made his case for the Patriot Act to Congress, and Congress will likely take up this issue sometime in the next year. The most viable course of action for the Justice Department is to influence the next version of 18 U.S.C. 2339a and 2339b that comes out of Congress.

Update: Jess Bravin adds a good report on this decision in Tuesday's edition of the Wall Street Journal (subscription required). He points me to something which I should've noticed -- the existence of a circuit split between the 4th Circuit district court which upheld 18 U.S.C. 2339b in the Lindh case (before his plea bargain), and courts in the 2nd and 9th Circuit who have held this law to be unconstitutional. Such a split may increase the likelihood that the Supreme Court will take the case, and decide precisely what "material support" means under the Constitution.
Judge Collins's opinion follows several others striking down federal laws aimed at cutting off foreign terrorist groups from their backers in the U.S. In July, a federal judge in New York threw out some charges against attorney Lynne Stewart, who is accused of transmitting instructions from her imprisoned client, Sheikh Omar Abdel Rahman, to his followers on the outside. In that case, District Judge John Koeltl ruled that sections outlawing the provision of "personnel" to terrorist groups were unconstitutionally vague, but he let other charges stand.

In November, federal prosecutors filed a new indictment against Ms. Stewart. Her client, Sheikh Rahman, is serving a life sentence for conspiring to blow up New York City landmarks and is under strict regulations prohibiting his communication with the public.

The case before Judge Collins originated well before Sept. 11, 2001, and was brought by five organizations and two U.S. citizens who were challenging the 1996 antiterrorism law and seeking to maintain contacts with Kurdish and Tamil groups that the U.S. government had designated as terrorist organizations. They later added a challenge to the USA Patriot Act as well.

Judge Collins previously struck down a "personnel" provision under the 1996 law that is similar to the one she struck down Monday. Last month, a federal appeals panel in San Francisco affirmed her rulings doing so.

The government has appealed that ruling to the full Ninth U.S. Circuit Court of Appeals, noting that a federal judge in Alexandria, Va., adopted its view of the material-support statute in the case of John Walker Lindh. In 2002, District Judge T.S. Ellis III ruled that the ban on providing "personnel" could be applied to Mr. Lindh, an American who fought alongside the Taliban in Afghanistan.


 
No child left behind... except for those in DOD schools

Law From The Center, another weblog run by a UCLA law student and Army officer, has a troubling report today from the Magic City Morning Star (Maine) about a loophole in the No Child Left Behind Act which exempts schools run by the Department of Defense from its requirements. The loophole exempts these schools because they fall outside the purview of the Department of Education, and it affects thousands of students in DoD schools around the world.
Doug Kelsey, the deputy director of the DoD's school system, said that the schools are trying to live up to the spirit of the legislation despite the fact that the DoE has no jurisdiction over DoD schools. "We actively comply with the intent of the law," he said.

Kelsey said that DoD schools set high standards for its students and teachers, citing high performance on standardized tests and graduation rates higher than 95%.
. . . .
DoD 8th-graders ranked second compared to the 50 states on the 2002 National Assessment of Educational Progress reading tests. The military’s 4th-graders ranked fourth among the states on the 2002 NAEP reading exam. African-American and Hispanic students perform better overall in the military’s schools than anywhere else in the nation.
Maybe... but my friend Pete makes a good point that DOD students' scores on the all-important Scholastic Aptitude Test have been slipping. More than any NCLBA-mandated testing, the SAT has a real effect on the ability of these students to pursue post-secondary education and economic opportunity. But above and beyond any policy considerations, there is a normative reason why we should be concerned about this lack of accountability in DOD schools, which Pete sums up well:
Considering that DOD schools serve the children of those who are risking their lives to defend our country, and given that our leadership has determined the NCLBA as the best way to ensure our children and schools meet high standards of excellence, don't we owe it to our children to make the standards of the NCLBA mandatory on the DoD schools, instead of relying on their assurances that they will "comply with the intent of the law?"


Sunday, January 25, 2004
 
A legal clinic with a mission

Eugene Volokh passes on some good news from George Mason University, where Prof. Joseph Zengerle has set up a clinic to provide legal assistance to servicemembers on a variety of issues from family law to deployment matters. (Thanks to Stop the Bleating for the heads up) Prof. Zengerle, a West Point alumnus and Vietnam veteran, has this to say about the new clinic:
George Mason law school has an unusually large number of students who have served in the military or have a strong patriotic interest in supporting the armed forces, and who are eager for a clinical experience. The school, whose faculty share their interest, has preliminarily confirmed with defenseofficials the existence of unmet legal needs among active duty members of the services and their families (including those who have been mobilized from the reserve forces). Seeking to match those interests with the need, the Clinic for Legal Assistance to Servicemembers (CLAS) began formative activities in January, 2004. Initial law student participants, who include a retired Navy captain, a retired Army lieutenant colonel with enlisted experience, a woman who spent seven enlisted years in the Air Force including the first Gulf war, and a former Senate staffer who hails from a devoted Marine family, will work with the clinic's executive director, Professor Joseph Zengerle, a Vietnam veteran who instituted the seminar on Homeland Security and the War on Terror at the law school. The clinic is now conducting a needs assessment to determine the gaps students might help fill, which commenced with a meeting at Walter Reed Army Medical Center. Studying substantive laws like the Servicemembers Civil Relief Act, collaborating with bar and nonprofit service organizations, establishing compliance with applicable requirements under federal law and other authorities, and structuring the organizational and academic elements of a new clinic, are simultaneously ongoing. CLAS just received its initial donation, a private grant to match the first $25,000 in contributions.
Analysis: Suffice to say, I don't think we're going to see anything like this at UCLA in the near future, despite the existence of an active veterans association at the law school. Our veterans group does work with an organization called New Directions at the West L.A. VA hospital, but we don't have anything like this in the way of institutional support. Notwithstanding that fact, I think this is an outstanding idea, and I hope to support it any way that I can. According to a note on Eugene Volokh's page, Prof. Zengerle can be reached at: Joe Zengerle; George Mason University School of Law; 3301 North Fairfax Drive, #404; Arlington, VA 22201 -- or by email at jzengerl [at] gmu.edu. This is a worthy cause -- if you can donate, please do.

 
Happy birthday to Jack Balkin's weblog: "Balkinization", the weblog of Yale Law Professor Jack Balkin, celebrated its 1-year anniversary over the weekend. As you might expect from the Knight Professor of Constitutional Law and the First Amendment at Yale University, Prof. Balkin has a thoughtful essay about free speech, blogging and the essence of democracy that deserves a read. Here's a brief excerpt from his conclusion:
The second reason why the fears of the fracturing of the public sphere seem overstated is the nature of network topologies. The Internet, and in particular, the blogosphere, has a scale free topology. As the Internet expands, and more links are added, a larger proportion of links are made to a relatively small number of sites. The result is that, over time, a relatively small number of sites receive the lion's share of links. They are hubs in the network that forms the Internet's public sphere. Go to The Truth Laid Bear and look at the blogosphere ecosystem and traffic rankings and you will see what I mean. A handful of blogs have an enormous number of links to them and a considerable amount of traffic, and as you go down the list, the number of links and amount of traffic rapidly diminishes after the first dozen or so sites, until you get to a fairly flat curve.

As long as the Internet, and in particular, that portion of the Internet where people get their news, has a scale free topology, Sunstein's fear of an unacceptably fractured public sphere is overstated. Indeed, the problem may be precisely the opposite of the one he imagines: A relative handful of news sites, or a relative handful of bloggers may have a very large amount of power over public opinion because they are the key hubs or nodes in the network of Internet public opinion. That, in some ways, is similar to (although not identical with) the condition we had with the traditional mass media. While the dominance of the traditional mass media in the public sphere was created by government's control over the air waves (in the case of radio and television) and economies of scale and the effects of local advertising (in the case of newspapers), the dominance of a small number of hubs or nodes in the public sphere on the Internet is caused by power laws that apply to certain types of communications networks, of which the Internet is a particularly salient example. To be sure, the concentration of influence over public opinion on the Internet is much less than we had in the traditional mass media. But is not at all clear to me that this is necessarily a bad thing.
Analysis: I agree with much of what Prof. Balkin says. The free speech metaphor of a "marketplace of ideas", which traces back to Justice Holmes' stirring dissent in Abrams v. United States, applies to weblogs as well as any other phenomenon on the Internet. Just as in the real marketplace, bad products sometimes get their day in the sun. (Snake oil or spray-on hair anyone?) But over time, the good ideas and good bloggers have tended to rise to the top, just as they would if they were goods or services in a real marketplace. If there is a downside to the weblog world, it is that there is no mechanism for the cleaning of bad ideas, as there is in the real marketplace where bad ideas result in bankruptcy and business failure. In the blogosphere, bad ideas tend to have more staying power and resilience, especially because it costs nothing to run a weblog. But that only raises the stakes for those of us who are trying to put "good speech" out there. As Justice Holmes wrote nearly 90 years ago:
"... when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution."
And this is true of the Internet as well. We ought not be afraid of bad ideas, whether they come from the right or left. But we ought not be afraid speaking out against bad ideas either.

 
The difference between AWOL and Desertion: Centrist, fellow UCLA law student and Army officer, has a good analysis of the precise legal difference between AWOL and desertion. This distinction has become relevant since filmmaker Michael Moore called President Bush a "deserter", and retired-Gen. Wesley Clark quasi-endorsed that label by reference.

Also see Donald Sensing's discussion of the same subject at One Hand Clapping, complete with some interesting anecdotal evidence on the matter from then-CPT Sensing's time as company commander. (Don's post got 43 comments, so apparently he must've said something right.)

Full disclosure: I made a small contribution to the Clark campaign a couple of weeks ago, so I will stay out of this one. But I can't find a flaw in either analysis linked above, and a general officer ought to know better than to use imprecision when it comes to sections of the Uniform Code of Military Justice.

Saturday, January 24, 2004
 
A steak and lobster military on a McDonalds budget, part II
New Pentagon budget is bigger than ever (in constant dollars)

It may have been the case after the Cold War that we underfunded parts of our military -- to have a "steak and lobster military on a McDonald's budget", in the words of one Army colonel (and U.Texas alumnus) that I worked for on active duty. But that's clearly not the case today -- we're now paying for our military with a corporate charge card more worth of Spago or Patina. The Pentagon is requesting an FY2005 budget of $401.7 billion to cover everything from current operations to new equipment to futuristic research by DARPA -- a 7% increase from FY2004. (Also see this report by Esther Schrader in Saturday's LA Times, and this article in the Washington Post on the same subject.)
In order to meet U.S. national security priorities, the fiscal 2005 budget request reflects the president’s continued commitment to prosecute the War on Terror and balances support for long-term transformation of technology and defense capabilities with resources for current global operations and requirements.

Secretary of Defense Donald Rumsfeld said the budget highlights the president's priority to provide the pay, benefits and other quality-of-life measures needed to recruit and retain the highest quality volunteers for service in the active and reserve forces.

"The president three years ago directed that we consider how best to transform this department to ensure our nation has the capabilities and people needed for the national security circumstances of the 21st century. We have made significant progress," Rumsfeld said. "This budget builds upon past work to provide for a ready force made up of the talents and skills needed in our new national security environment. The men and women in uniform are demonstrating the joint and combined warfighting capabilities our nation will need to prevail in the Global War on Terror."

The fiscal 2005 defense budget provides for investment in improved and better-integrated intelligence capabilities and emphasizes readiness and training. This budget also supports continued transformation of the joint force and provides for homeland defense needs. The budget reflects the tools previously provided by Congress for better managing the force, including the first steps toward implementation of the National Security Personnel System reforms signed into law by the president in 2003.
More to follow...

Friday, January 23, 2004
 
Trouble with America's military reserves

A pair of articles today lets us in on the problems surfacing in America's reserves. The first is a report from Joe Galloway, the same reporter who accompanied Hal Moore's 1-7 Cav into the hellhole of the Ia Drang Valley during the Vietnam War. Moore and Galloway later co-wrote the book "We Were Soldiers Once... and Young." Galloway is now one of the elder statesmen in the military press corps, and he writes this week about a new report by Prof. Charlie Moskos, the preeminent military sociologist in America.
[Moskos] found morale was good among regular soldiers and was markedly lower among reserve component soldiers.

In a preliminary report written for the acting secretary of the Army, Les Brownlee, Moskos, a respected author and professor emeritus at Northwestern University, says he found a "higher level of morale than was anticipated" among regular Army soldiers.

Moskos noted "exceptional levels of performance under very demanding conditions" and said he had no recommendation for major changes in command policies affecting the troops. He did have suggested changes in personnel policies.

In contrast to the high morale of regular soldiers, Moskos says, he found lower morale among reserve components - Army Reserves and Army National Guard. The sociologist said that "the complaint that reservists were second-class citizens in Operation Iraqi Freedom was frequently heard."

* * *

Moskos wrote that the lower morale among reserves was specific to Iraq, and that he had found morale among reservists doing peacekeeping duty in Bosnia and Kosovo generally higher and on a par with regular soldiers.

Clearly, with the Army relying so heavily on Reserve and National Guard soldiers to do its job, someone at the top needs to be listening to Charlie Moskos and taking corrective action. This is not the time to let reserve component morale sink when the percentage of reservists in the force occupying Iraq are rising to new highs - and when many will have the opportunity to vote with their feet and abandon the Reserves and Guard at re-enlistment time if they continue to feel badly used and poorly treated.
According to this report in USA Today, reservists have already started to vote with their feet. A story earlier this week reported that the Army Reserve has having serious trouble with managing its personnel in the wake of numerous post-9/11 mobilizations. It has been widely thought that the problem affected the National Guard as well, though National Guard Bureau officials have generally denied such claims in the absence of data. Here's what Dave Moniz had to say in today's USA Today:
A recent survey of 5,000 soldiers from 15 states showed that the rate at which Army Guard members choose to leave the military could jump — to 20-22% a year among those who have served long overseas tours, typically 12 months.

Last year, about 16% of all Army Guard troops left the military as a result of retirement, injuries or a decision not to re-enlist, a figure slightly below the annual historical average of 18%. Among Guard soldiers returning from deployments in the USA and overseas from 2001 to 2003, only 12.5% left, statistics show.

The survey results are raising concerns, given the strains on Guard and Reserve troops and widespread worries that part-time soldiers are being relied on too much in the war on terrorism. Some 97,000 soldiers — about 28% of the 350,000-member Army Guard — are now on active duty in the USA or overseas.

The Pentagon will continue to rely heavily on the Army Guard and Army Reserve in Iraq, where by May, nearly 40% of the more than 100,000 U.S. troops will be Guard or Reserve.

Some military personnel analysts believe the survey hints at the leading edge of an exodus because part-timers are losing patience and don't want to be treated like full-time troops.
Analysis: Yeah, I agree with that. Much of this problem traces to the overreliance of America's military on the reserve components. A generation ago, Gen. Creighton Abrams removed a great deal of support capability from the active force and put it into the reserves, as a mechanism to prevent any future wars like Vietnam where the President chose to fought without the mobilization of the reserves -- and without popular support. As I wrote in an op-ed last year, this concept has run into serious problems since Sept. 11, with so many reserve units being called up for long-term deployments.
Army Gen. Creighton W. Abrams played a key role in crafting this "total force" concept, wherein key support units were placed in the reserves that active-duty combat units would need for any major war. The idea was that no president could again wage an unpopular war, because a future war would require reserve mobilization, and that would require popular support.

The system worked fairly well during the Cold War, when everyone in the active and reserve force trained for the big war with the Soviet Union. After the Berlin Wall fell and the first Gulf War ended, things changed. America's military transitioned from a "forward-deployed" force focused on the Soviet Union to an expeditionary force that deployed to small trouble spots around the world.

The role of the reserves changed as well. Support units such as military police, civil affairs and logistics now mattered more for missions like Somalia and Haiti than the combat units in the active force. The operational tempo for reservists increased steadily during the 1990s.

After the Sept. 11 attacks, America mobilized its reserves in a way that hadn't been seen since Korea. At home and abroad, reservists performed missions that active soldiers couldn't (such as guarding airports) and supported the active force in Afghanistan and elsewhere. Since Sept. 11, no fewer than 40,000 reservists have been on active duty at any given time, both for homeland security missions and combat operations overseas. Today, the Defense Department has 168,915 reservists on active duty in support of the war on terrorism. [The number today is nearly 40,000 higher than this, according to the Pentagon.] Senior officials have made it clear that the military could not function without the support of the reserves.

Yet, America's reserves have never achieved full equality with their active-duty counterparts. The reservists marooned at Fort Stewart -- as well as their reserve brethren around the world -- have long suffered from a lack of resources. America gives less to its reserve forces at every step -- recruiting, training, deployment, equipment, manning, medical care, even veterans' benefits. In the Army Reserve and National Guard, the nation gets a bargain -- trained soldiers with civilian experience who can be called at a moment's notice, but paid for only one weekend a month and two weeks in the summer.

Even in Iraq, reservists had to make do with less than their active-duty counterparts. Reserve units typically stand last in line for new equipment, behind active-duty Army units and the Marines. National Guard and Army Reserve units deployed to Iraq with radios older than many of their soldiers -- radios that could not talk securely with the active-duty units they worked with.

Many reserve units drove into Iraq with cargo trucks that were more than 30 years old. Reservists were also last in line to receive the military's new "Interceptor" body armor, specially designed to stop bullets from an AK-47.
You can't have a steak & lobster military on a McDonald's budget. Over the last few decades, we have purchased readiness in the reserves at a very low cost. We have essentially maintained skeleton units in the reserves on the assumption that we could train these men and women for war when the time came, and that we could infuse resources/equipment/personnel into these units when the need came. Well, the need is here, and there's no time to do just that before we send these units into combat. The result is that reservists have gone to combat without the resources, training, personnel, leadership, and equipment necessary to get the job done. Body armor is just one example. If you look at the MTOE (Modified Table of Organization and Equipment) of any reserve unit, it's a full generation behind its active-duty counterpart.

Reservists are getting out in droves because they're tired of being abused this way; because they're tired of being used by the Pentagon as an end-run around end-strength limits; and because they signed up to fight "the big one" -- not be mobilized multiple times within a short period. At the end of the day, I have limits to my sympathy for reservists because they did all volunteer and raise their right hand to swear an oath as soldiers. But the nation has got to realize that these reservists are not an infinitely renewable resource. If the Army treats them badly, they will vote with their feet. And our military readiness will suffer when they do.

 
Transitions

Mark R. Lewis, who until today wrote the weblog "Acquire, Identify, Engage", has decided to hang up his keyboard in order to pursue a new position with the House Armed Services Committee. Mark is one of the most brilliant guys I know; in addition to his smarts, he has more than 11 years of experience as an Army infantryman to back up his brain. He is precisely the guy I want in the offices of HASC, adding his informed voice to the fray over defense budgets, force structure, military strategy, and other national security matters. Like me, Mark made a promise to the soldiers he left behind in the Army that he would use his graduate degree and civilian position to continue the fight at a higher level. Congratulations on getting into a position where you can do just that.

Thursday, January 22, 2004
 
Waiting out the Patriot Act

In his State of the Union Address on Tuesday night, President Bush asked Congress to renew the USA PATRIOT Act, saying that some of its key provisions will expire this year. If those provisions expire, the President continued, American law enforcement agencies won't have the tools they need to prevent terrorism. Here's what the President said:
Inside the United States, where the war began, we must continue to give homeland security and law enforcement personnel every tool they need to defend us.

And one of those essential tools is the Patriot Act, which allows federal law enforcement to better share information, to track terrorists, to disrupt their cells and to seize their assets. For years, we have used similar provisions to catch embezzlers and drug traffickers. If these methods are good for hunting criminals, they are even more important for hunting terrorists.

(APPLAUSE)

Key provisions of the Patriot Act are set to expire next year.

(APPLAUSE)

The terrorist threat will not expire on that schedule.

(APPLAUSE)

Our law enforcement needs this vital legislation to protect our citizens. You need to renew the Patriot Act.

(APPLAUSE)
It appears that Congress is less than willing to ask "how high?" when the President says "jump". Eric Lichtblau reports in the New York Times that Congressional leaders on both sides of the aisle are hesitant to act on this legislation at this moment, before the 2004 election, and unclear as to why the President has made the USA PATRIOT Act an issue before the election.
Crucial provisions of the law do not expire until the end of 2005, and Mr. Bush's push for their renewal in his State of the Union speech, which he repeated on Wednesday, caught many lawmakers off guard.

"I'd say he's about a year early," said Senator Charles E. Grassley, Republican of Iowa and a leading member of the judiciary committee. "If I were running for president, I wouldn't have brought it up now."

Mr. Grassley, like other members of Congress interviewed on Wednesday, said that while the antiterrorism act included some important law enforcement tools worth keeping, it was so far-reaching that its continuation needed careful scrutiny.

"I would not take a position of outright renewal at this point," he said.
Analysis: The White House said that the President was putting down a "marker" as to what his position was on the bill. But I think in reality, he's inviting a fight over civil rights and civil liberties -- a fight which can only help the Democrats once they choose a candidate and coalesce on the issues they're going to campaign on in 2004. This will likely be one of their issues, and the President has served it up on a platter. The Democrats will likely argue, as Fred Kaplan notes in this Slate article, that real spending on homeland security has actually dropped since 9/11 during this presidency.
"We must continue to give our homeland security and law enforcement personnel every tool they need to defend us."

Yet this is precisely what President Bush has failed to do. His homeland security budget for fiscal year 2004 was smaller than the budget for FY 2003. He has yet to order a serious effort to develop or procure WMD-detecting sensors. Security of cargo on ships and commercial airliners is riddled with holes. The borders are sieves. Most local police and fire departments lack the money, gear, and training to prevent, or to deal with the aftermath of, terrorist attacks.
And the Democrats will connect the dots to the Patriot Act too, saying that this Act diminishes "[t]he right of the people to be secure in their persons, houses, papers, and effects" (to quote the 4th Amendment), and that the Bush Administration actually threatens the personal security of Americans through its aggressive style of law enforcement. I don't necessarily agree with this entire argument, but I think it's a plausible interpretation of the facts and one that can be used to great political effect.

Update: In direct response to Fred Kaplan's criticism above, President Bush said today that he would increase teh amount of federal money being spent on homeland security efforts. More to follow...

 
Memo: get J-Lo a GoCo lawyer

"GoCo" stands for "government contracts", and it looks like she and a few of her Hollywood colleagues could use a good one in the wake of this report by Esther Schrader in the Los Angeles Times. Apparently, these stars ran up quite a bill on the USO's tab while entertaining U.S. military personnel abroad -- without any consideration for the way federal law requires them to handle their accounting.
The Lopez show was among several cited in a General Accounting Office report released this month that found more than $430,000 in improper, questionable or unsupported USO tour expenses charged to the Pentagon over a two-year period.

The GAO study, which looked at 10 randomly selected tours during 2000 and 2001, found no evidence of malfeasance in the nonprofit organization's use of government money. Nor was there any finding that the entertainers did anything wrong.

But the investigation, requested by Rep. C.W. "Bill" Young (R-Fla.), found that taxpayers repeatedly paid for first-class plane tickets, liquor and limousine services for celebrities, in violation of Pentagon and federal regulations.

Any such luxury expenses are supposed to be paid out of the USO's private donations, not the money it gets from Congress. The GAO report blamed sloppy bookkeeping by ill-trained employees.

The investigation, however, prompted the Pentagon's Armed Forces Entertainment division, which disburses federal funds to the USO, to review all tours since 1998; so far, it has uncovered an additional $73,000 in improper payments and recovered more than $140,000 from the USO.
Analysis: C'mon guys, let's get this admin stuff right. These tours do a lot of good for our soldiers overseas, and I'm not all that upset at paying for a first-class ticket or some liquor if that's what it takes to put J-Lo in front of the 4th Infantry Division. (Especially if we're willing to use private military jets to shuttle around senior generals and defense officials.) But we need to tighten our shot group here and do it right. That means reading the FAR and the DFAR and figuring out exactly what can be done with government money, and asking private sources to pay for the rest.

Wednesday, January 21, 2004
 
New legal blogs of note

Legal Fiction: a weblog written by an anonymous law clerk to a federal judge somewhere in the South who claims he's not part of the Federalist Society, and whose links look center-left to me. It's always interesting to hear from someone who's working inside of a federal judge's chambers.

Law From The Center: a weblog written by a UCLA law student who's also a captain in the United States Army -- but who's quite a bit smarter than me. (He made law review; I didn't) He's got a post up now on the brief filed by the JAG lawyers assigned to the Gitmo detainees, among others, that deserves a read.

 
Army Reserve chief says change must be made to reserves -- and now

In the kind of blunt language that shows years of frustration from dealing with bureaucrats and regulations, Army LTG James Helmly said he's working on a way to overhaul the way the Army Reserve does business in the midst of the Global War on Terrorism which has stretched the reserves to "near the breaking point", to quote a recent Army War College study. Vernon Loeb reports in the Washington Post that these changes will include everything from simple fixes -- like fielding equipment to those who need it -- to wholescale restructuring and unit deactivations. (Eric Schmitt reports in the New York Times on the same luncheon briefing.)
Lt. Gen. James R. Helmly said his staff is working on an overhaul of the reserve aimed in part at treating soldiers better and being more honest with them about how long they're likely to be deployed. Helmly said the reserve force bureaucracy bungled the mobilization of soldiers for the war in Iraq, and gave them a "pipe dream" instead of honest information about how long they might have to remain there.

"This is the first extended-duration war our nation has fought with an all-volunteer force," said Helmly. "We must be sensitive to that. And we must apply proactive, preventive measures to prevent a recruiting-retention crisis."

Helmly said his staff is engaged in an overhaul of the reserve aimed at turning the Army's part-time soldiers into a top-flight fighting force that can handle the strains of the global war on terrorism. In a Pentagon briefing for defense reporters, Helmly outlined an array of planned changes and bluntly described the force he took over in May 2002 as being dominated by bureaucrats who often ignored soldiers' needs.

In a recent memo, Helmly said, he told his subordinates that he was "really tired of going to see our reserve soldiers [and finding] they're short such simple things as goggles. It's about damn time you listen to your lawyers less and your conscience more. That will probably get me in trouble. But I told them, I want this stuff fixed."
Analysis: There are a few important things to pull out of this story. The first is that the Army Reserve is having a retention crisis, and that this crisis is being masked by the current implementation of "stop loss" and "stop move" policies. The Pentagon and Army leadership has denied this fact, saying that the Army Reserve is not in fact having such a crisis, and that it has met its recruiting and retention targets for the most part since 9/11/01. I'm a bit closer to where the rubber meets the road in the reserves, and my gut told me that was wrong. Now, the Chief of the Army Reserve is saying he agrees with me -- and that such a crisis likely looms for every unit that redeploys from Iraq and comes out of the "stop loss" policy's scope.

The next big thing I see here is a realization in the reserves that a) the Iraq mission will go on for a long time, and that b) the reserves must fundamentally change their structure in order to be ready for it. America's all-volunteer reservists typically don't join to do back-to-back rotations in airports and Iraq, nor do they sign up to be "fillers" for the active-duty force. They sign up to fight the big one; a mass mobilization war where the nation gets behind them and they can justify being called away from their lives and jobs. It's very hard on the reserves to call up more than once in a short period, and it generally breaks the back of units to do it. LTG Helmly wants to restructure the reserves so that they're capable of managing their mission load without breaking their soldiers or their units. That's a good thing.

Third, there's a message about the end strength of the Army in this story too. The Army's end strength is capped as a matter of federal law, at somewhere below 500,000. However, Army leaders have said they have busted this number by as much as 20,000 in recent months due to "stop loss" and other policies in place. But that doesn't even scratch the surface of the problem. When you factor in reservists, the Army busts its end strength by 150,000. Since 9/11/01, the Army and other services have maintained at least 40,000 reservists on active duty at any given time, with peaks just after the 9/11 attacks for homeland security and in mid-2003 for Iraq. Right now, the reserves have mustered roughly 200,000 servicepersons for duty -- including about 160,000 Army reservists and National Guardsmen. In legal terms, these numbers don't count against the Army's end strength. But in policy and practical terms, it's clear that the Army doesn't have the "boot strength" it needs to do its job. (Also see this article by Tom Bowman in the Baltimore Sun, where another 3-star Army generals says he thinks the Army is too small.) More specifically, the Army doesn't have the strength in specific areas like Civil Affairs, Military Police, Transportation, and others because those have been concentrated in the reserves. LTG Helmly's ideas may fix that, but it'll take a while.

Update I: On a related subject, see MAJ Don Vandergriff's briefing on lessons learned from Operation Iraqi Freedom, available from the Defense and the National Interest website.

Update II: A reader writes in with a very good question. We hear a lot about how the Army Reserve and National Guard is broken. But what about the other services' reserves, especially the Air Force Reserse and Air National Guard? They've gotten a lot of use since 9/11, haven't they? And what about the Navy and Marine Corps Reserves? The answer is, I think, that the media and the public have focused on the Army's reserve components because they're the largest and they've taken the brunt of the mobilizations. But it's an interesting question, and one that I don't have the answers to because I'm not as familiar with these other organizations and their current status.

Update III: In characteristic style, Secretary of Defense Donald Rumsfeld "brushed aside" the statements made on Monday by another 3-star Army general that said the Army needed to increase its end strength. The issue is very much tied to this one, because the Army has patched its end strength shortfall by calling up reservists.
"We've increased end strength substantially," said Rumsfeld, using the service term for the total number of soldiers.

The overall increase is about 36,000 troops, accomplished through the Pentagon's emergency order that temporarily bars service members from completing their enlistments or retiring until they finish their duty in Iraq or Afghanistan.
Analysis: Now that's a bit disingenuous. The Pentagon has not permanently increased its end strength because that's outside its power, and it has not requested such an increase in its FY04 budget act. Such an increase may be part of the FY05 National Defense Authorization Act, but I don't think that's gone over to the Hill yet. The Pentagon has "increased end strength substantially" in two major ways: 1) by involutarily extending soldiers on active duty through emergency "stop loss" policies, and 2) mobilizing hundreds of thousands of reservists. It's like saying you're fiscally fit when you're borrowing money up to your eyeballs... eventually, that borrowing's going to catch up to you.

 
TSA does the right thing
Issues new policy to help military families say goodbye

This from the Philadelphia Inquirer:
The government said it would allow the families and friends of troops flying to and from Iraq to escort them all the way to the airport gates, rather than getting stopped at security checkpoints. The Transportation Security Administration sent a memo last week to airport security directors asking them to develop procedures so members of the U.S. armed forces could be accompanied to and from their boarding gates, agency spokeswoman Amy von Walter said yesterday.


Tuesday, January 20, 2004
 
National security notes on the State of the Union address

In about 40 minutes, President George W. Bush will deliver his State of the Union address to a joint session of Congress, the American public, and the world. I'm anxious to watch the event and to see what President Bush says in his speech. I'm really curious what he's going to say about Iraq, and about America's national security generally. More to follow...

Update: Here are some initial thoughts on the speech, which I'm listening to right now and reading online via the Washington Post's transcript of the prepared text. (The Post also has the actual transcript of the speech as it was delivered up on its site.)

1. Guests of the First Lady. As one would expect, the gallery contains more military personnel this year than I've ever seen. Three of the soldiers caught my eye because they were wearing Army greens -- they're the three U.S. Army soldiers featured on the cover of Time magazine's "Person of the Year" issue designating the "American Soldier" as this year's person of the year. Later in the speech, when the President spoke to a military issue, the ABC cameras panned to these three soldiers.

2. Terrorism and complacency. The President makes a big point when he says there have been no attacks since 2001 on U.S. soil -- but that there have been many attacks overseas against U.S. interests and allies.
Twenty-eight months have passed since September 11th, 2001 -- over two years without an attack on American soil -- and it is tempting to believe that the danger is behind us. That hope is understandable, comforting -- and false. The killing has continued in Bali, Jakarta, Casablanca, Riyadh, Mombassa, Jerusalem, Istanbul, and Baghdad. The terrorists continue to plot against America and the civilized world. And by our will and courage, this danger will be defeated.
The point of this is that America cannot afford to become complacent. Therefore, the President says, we should continue to give America's security community the tools it needs to fight terrorism, namely, the USA PATRIOT Act. Here's what he had to say:
Inside the United States, where the war began, we must continue to give homeland security and law enforcement personnel every tool they need to defend us. And one of those essential tools is the PATRIOT Act, which allows Federal law enforcement to better share information, to track terrorists, to disrupt their cells, and to seize their assets. For years, we have used similar provisions to catch embezzlers and drug traffickers. If these methods are good for hunting criminals, they are even more important for hunting terrorists. Key provisions of the PATRIOT Act are set to expire next year. [A smattering of applause fills the hall at this point.] The terrorist threat will not expire on that schedule. Our law enforcement needs this vital legislation to protect our citizens -- you need to renew the PATRIOT Act.
Analysis: This is very interesting. Many legal scholars and political observers see this piece of legislation as a political albatross for the administration -- a lightning rod for criticism that the Bush Administration doesn't respect American civil rights or civil liberties. It looks like the President is going to come out swinging on this point, and I'm not sure how that's going to go over. As a policy matter, I support most of the measures in the USA PATRIOT Act, because of my understanding of how they work and how law enforcement uses these tools today. But I also recognize that this Act has a tremendous political cost, and I'm not sure the President has the political capital he had in October 2001 when he got this Act passed the first time.

Later in the speech, President Bush offers another interesting thought on the nature of the global war on terrorism. In the legal community, there has been a great debate for the last two years (and much longer in some sections) about the nature of this conflict -- and whether terrorism is a problem of law or a problem of war. Here's what the President had to say:
I know that some people question if America is really in a war at all. They view terrorism more as a crime -- a problem to be solved mainly with law enforcement and indictments. After the World Trade Center was first attacked in 1993, some of the guilty were indicted, tried, convicted, and sent to prison. But the matter was not settled. The terrorists were still training and plotting in other nations, and drawing up more ambitious plans. After the chaos and carnage of September 11th, it is not enough to serve our enemies with legal papers. The terrorists and their supporters declared war on the United States -- and war is what they got.
That's pretty unequivocal, but it's not that surprising. I've been reading the legal briefs from the Justice Department in the Hamdi, Padilla and Al-Odah cases, and this is the kind of rhetoric in every single brief about the nature of the war on terrorism. By invoking the war paradigm, the President may be able to employ the powers typically reserved for a Commander-in-Chief in wartime. I'm not sure whether the Supreme Court will uphold the President's vision in the Al-Odah and Hamdi cases which it has agreed to review. But this President's vision is clear, and it has been one of the defining hallmarks of the way the legal war against terrorism has been conducted.

3. The Global War on Terrorism, and America's Strategy of Preemption. At various points in the speech, President Bush says that America will continue its aggressive foreign policy which has led to the war in Iraq and efforts to disarm Iran and North Korea with diplomacy. The President also cites Libya as an example of how the preemption strategy has worked, and how the example of Iraq has made other regimes think twice about holding onto WMD. Later in the speech, the President effectively draws a line in the sand over diplomacy, saying that America will do what it has to do, notwithstanding what other nations and institutions say. It's a pretty strong part of the speech, and one that will probably go over poorly with Europe and others in the international community.
As part of the offensive against terror, we are also confronting the regimes that harbor and support terrorists, and could supply them with nuclear, chemical, or biological weapons. The United States and our allies are determined: We refuse to live in the shadow of this ultimate danger.

* * *
Because of American leadership and resolve, the world is changing for the better. Last month, the leader of Libya voluntarily pledged to disclose and dismantle all of his regime's weapons of mass destruction programs, including a uranium enrichment project for nuclear weapons. Colonel Qadhafi correctly judged that his country would be better off, and far more secure, without weapons of mass murder. Nine months of intense negotiations involving the United States and Great Britain succeeded with Libya, while 12 years of diplomacy with Iraq did not. And one reason is clear: For diplomacy to be effective, words must be credible ? and no one can now doubt the word of America.

Different threats require different strategies. Along with nations in the region, we are insisting that North Korea eliminate its nuclear program. America and the international community are demanding that Iran meet its commitments and not develop nuclear weapons. America is committed to keeping the world's most dangerous weapons out of the hands of the world's most dangerous regimes.

* * *
Some in this chamber, and in our country, did not support the liberation of Iraq. Objections to war often come from principled motives. But let us be candid about the consequences of leaving Saddam Hussein in power. We are seeking all the facts -- already the Kay Report identified dozens of weapons of mass destruction-related program activities and significant amounts of equipment that Iraq concealed from the United Nations. Had we failed to act, the dictator's weapons of mass destruction programs would continue to this day. Had we failed to act, Security Council resolutions on Iraq would have been revealed as empty threats, weakening the United Nations and encouraging defiance by dictators around the world. Iraq's torture chambers would still be filled with victims -- terrified and innocent. The killing fields of Iraq -- where hundreds of thousands of men, women, and children vanished into the sands -- would still be known only to the killers. For all who love freedom and peace, the world without Saddam Hussein's regime is a better and safer place.

Some critics have said our duties in Iraq must be internationalized. This particular criticism is hard to explain to our partners in Britain, Australia, Japan, South Korea, the Philippines, Thailand, Italy, Spain, Poland, Denmark, Hungary, Bulgaria, Ukraine, Romania, the Netherlands, Norway, El Salvador, and the 17 other countries that have committed troops to Iraq. As we debate at home, we must never ignore the vital contributions of our international partners, or dismiss their sacrifices. From the beginning, America has sought international support for operations in Afghanistan and Iraq, and we have gained much support. There is a difference, however, between leading a coalition of many nations, and submitting to the objections of a few. America will never seek a permission slip to defend the security of our people.
Analysis: So, we're not going to see any change in the way that America does business. I agree that America ought to take a leadership role in the world, and that we ought to do the right thing even when the UN Security Council doesn't sign on. Kosovo was one such war, and there will doubtless be more in the future. But the aftermath of Iraq has shown us the value of international help, and we ought not spit in the face of the international community so brazenly. One line stands out in particular: "America will never seek a permission slip to defend the security of our people." That's a given -- Art. 51 of the UN Charter states clearly that every state has the inherent right to self defense. But I think it's wrong to put this kind of a marker down on the table; it undermines every international institution that stands for the rule of law over nations -- even the institutions we subscribe to like NATO.

4. Iraq and Afghanistan. The President obviously wanted to tell an optimistic -- but realistic -- story about the struggle to build a new Iraq. I think he did a pretty good job of doing so, though I think he downplayed the nature of the threat there. The President also talked about Afghanistan a great deal -- almost disproportionately for the amount of spirit, blood and treasure the U.S. has invested there right now.
The first to see our determination were the Taliban, who made Afghanistan the primary training base of al-Qaida killers. As of this month, that country has a new constitution, guaranteeing free elections and full participation by women. Businesses are opening, health care centers are being established, and the boys and girls of Afghanistan are back in school. With help from the new Afghan Army, our coalition is leading aggressive raids against surviving members of the Taliban and al-Qaida. The men and women of Afghanistan are building a nation that is free, and proud, and fighting terror -- and America is honored to be their friend.

Since we last met in this chamber, combat forces of the United States, Great Britain, Australia, Poland, and other countries enforced the demands of the United Nations, ended the rule of Saddam Hussein -- and the people of Iraq are free. Having broken the Baathist regime, we face a remnant of violent Saddam supporters. Men who ran away from our troops in battle are now dispersed and attack from the shadows.

These killers, joined by foreign terrorists, are a serious, continuing danger. Yet we are making progress against them. The once all-powerful ruler of Iraq was found in a hole, and now sits in a prison cell. Of the top 55 officials of the former regime, we have captured or killed 45. Our forces are on the offensive, leading over 1,600 patrols a day, and conducting an average of 180 raids every week. We are dealing with these thugs in Iraq, just as surely as we dealt with Saddam Hussein's evil regime.

The work of building a new Iraq is hard, and it is right. And America has always been willing to do what it takes for what is right. Last January, Iraq's only law was the whim of one brutal man. Today our coalition is working with the Iraqi Governing Council to draft a basic law, with a bill of rights. We are working with Iraqis and the United Nations to prepare for a transition to full Iraqi sovereignty by the end of June. As democracy takes hold in Iraq, the enemies of freedom will do all in their power to spread violence and fear. They are trying to shake the will of our country and our friends -- but the United States of America will never be intimidated by thugs and assassins. The killers will fail, and the Iraqi people will live in freedom.

* * *
And the men and women of the American military -- they have taken the hardest duty. We have seen their skill and courage in armored charges, and midnight raids, and lonely hours on faithful watch. We have seen the joy when they return, and felt the sorrow when one is lost. I have had the honor of meeting our servicemen and women at many posts, from the deck of a carrier in the Pacific, to a mess hall in Baghdad. Many of our troops are listening tonight. And I want you and your families to know: America is proud of you. And my Administration, and this Congress, will give you the resources you need to fight and win the war on terror.
Analysis: Obviously, the President wanted to tell a 'good news' story about the progress of the war on terrorism in its two combat theaters, Iraq and Afghanistan. But let's take a closer look at what was said and not said. The President never mentioned Osama Bin Laden -- not once. But he mentioned Saddam Hussein plenty of times. Osama's name is conspicuous by its absence, and indeed, the President did not really speak in much detail about Al Qaeda at all. However, he framed everything about Iraq in terms of the global war on terrorism, and the need to change this regime so that it could not support terrorism or acquire weapons of mass destruction. Given the lack of fidelity in our intelligence about those two matters, I was surprised to see this focus in the President's speech.

Second, while Afghanistan is certainly better off today than it was in 2001, it is not as well off as it should be. I don't think it's true that we have completely shifted our focus away from Afghanistan to fight in Iraq, and that we have completely neglected this nation that incubated Al Qaeda. But I do think that we have not met our burden for the reconstruction of Afghanistan, and that we have missed many opportunities over the past two years. That said, I don't think this issue (or this country) has much traction in the minds of the American public. Events in Iraq have reduced Afghanistan to an operational and political sideshow, and I think that President Bush is okay with that.

Third, the President made no mention of the casualty count in Iraq, or the heavy cost that America may yet have to pay in order to stabilize that country. It makes some political sense to downplay those statistics, and to focus on good news metrics like the number of schools constructed. But by ignoring the negative news, the President made himself seem less credible as well. He also missed the opportunity to gird the American public for future sacrifice, and to justify the sacrifices made thus far to the American public. Right or wrong, the most visible metric for the American people right now is the number of American KIA in Iraq. I don't think the Commander-in-Chief should have completely ignored that.

Finally, the President pledged to give soldiers the resources they need to fight the war on terrorism. I thought this part was well said, and that Congress and the President should give our soldiers what they need. That's a no-brainer. It's very hard to prioritize the defense budget when almost everything has some reasonable purpose -- and where many things are thought to be mission-essential. But the really hard part is to make the tough decisions about when and where to employ our military so that the military's capabilities aren't overtaxed by the missions we give them. With so much of our military now committed to Iraq and Afghanistan, we need to think really hard about any future endeavors abroad. It's not that we can't afford it -- we probably can if we mobilize large numbers of reservists and blow apart the federal budget. It's about asking whether this price is worth it.





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