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

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INTEL DUMP has moved to http://www.intel-dump.com

I've finally moved Intel Dump to its new location, at http://www.intel-dump.com. Intel Dump 2.0 is available now, and it basically looks the same as the old Blogspot version. However, the Powerblogs software and server is much better than what Blogger provides. In the future (probably after I take the bar exam), look for Intel Dump 3.0, which is in the design process now. I plan to give the site a complete facelift, and add some functionality such as real-time news updates and possibly additional authors.

Please adjust your bookmarks to reflect my new site address. Thanks for your support.
posted by Phillip Carter at 10:31

 
More from Abu Ghraib: The front-page image on the Washington Post's webpage is of an Iraqi detainee crouching in fear (hands bound behind his back) before a U.S. military working dog, being restrained by its handler with two hands. It's not a good image. The Post has an exclusive report on the new photos and statements to emerge from the investigation into Abu Ghraib.

Once again, I think we should be asking ourselves: why are we only prosecuting the 7 lowest ranking soldiers here? At the very least, the chain-of-command is culpable for its failure to stop these criminal acts. At most, if you believe Sy Hersh's latest report in the New Yorker, the culpability runs all the way up to the top Pentagon leadership -- and perhaps higher. So why is the highest-ranking guy to be charged so far a Staff Sergeant in the U.S. Army Reserve? That just doesn't seem right to me.

Update: There may be one high-ranking casualty so far from Abu Ghraib: current DoD General Counsel William Haynes II. President Bush had nominated Mr. Haynes to the 4th Circuit Court of Appeals, and the Senate Judiciary Committee had reported it out to the full Senate. But according to this report from Jess Bravin of the Wall Street Journal (subscription required), Mr. Haynes' nomination now looks to be in doubt. Senate Democrats (and a few Republicans) want him to answer questions about his role in crafting the legal framework for detainees held by the military at Guantanamo, in Iraq, and elsewhere. To date, Mr. Haynes' response has been:

"It would be inappropriate for me to respond," Mr. Haynes wrote, "because your question invites my views on a matter about which I may or may not have been called to provide advice as general counsel of the Department of Defense."

Normally, lawyers nominated to the bench are given some latitude for difficult or unpleasant work they've done on behalf of clients. After all, the job of a lawyer is to advocate for their client, and often times that might mean helping some unscrupulous causes. If this were the rule, then we'd rarely get a public defender or corporate litigation attorney on the bench, because they would be vicariously punished for the heinous acts of their clients. However, Mr. Haynes' case is different, because he may have taken a more active role in developing these policies than simple legal advice. At least, that's what those opposed to his confirmation want us to think. It's not clear yet whether he actually played a role in sanctioning the abuses at Abu Ghraib and elsewhere. However, Mr. Haynes is the most vulnerable to political retribution right now, because he needs Senate confirmation in order to take the bench. We'll see what happens.
posted by Phillip Carter at 07:42

 
The quickest way to achieve real global deployment capability
When you absolutely, positively, have to deploy a brigade combat team overnight

The trade journal Inside the Air Force (subscription required) has a report today on some language in the 2005 National Defense Authorization Act that would support the future purchase of 42 additional C-17 "Globemaster" aircraft. These are the newest cargo aircraft in the fleet, and they're capable of moving 85 tons of cargo around the world. Suffice to say, the Air Force's strategic lift fleet has been stressed by the war on terrorism almost as much as the Army's land forces -- it needs these birds.

Both the House and Senate Armed Services committees included language in reports accompanying their fiscal year 2005 defense authorization bills supporting the position of TRANSCOM Commander Gen. John Handy, who says that the service needs, at a minimum, 222 C-17 airlifters. The current contract that delivers 15 aircraft per year will leave the Air Force with a fleet of 180 Globemasters by FY-08.

Handy testified in March before House and Senate subcommittees that the Mobility Requirements Study 2005, completed in January 2001, was inaccurate because it did not take into account increased operational demands tied to the war on terrorism and the creation of U.S. Northern Command and the Department of Homeland Security.

He delivered a report March 10 to the Senate Armed Services seapower subcommittee that found the moderate-risk airlift requirement for 54.5 million ton-miles in MRS-05 was understated. The requirement is at least 57.4 to 60 million ton-miles per day, according to Handy’s report. But even that number could be a low estimate, and the service will not know for sure what its requirements are until a Mobility Capabilities Study is completed at the earliest by spring 2005, Handy told the subcommittee.

* * *
While neither committee added funding into the FY-05 budget for C-17 procurement, the Senate committee “directs the Air Force to take full account of the position of the Commander, U.S. Transportation Command, in formulating its procurement plans for C-17 aircraft,” according to its report.

House lawmakers were more direct, stating: “The committee strongly urges the Department of the Air Force to budget for continued C-17 procurement through a multiyear program to procure at least 42 additional C-17 aircraft.”

Analysis: There are lots of things in the 2005 NDAA that can be cut. The Pentagon sent this budget over with a lot of fat, and Congress is sure to add some pork by the time the process is through. The force needs these strategic lift capabilities now, or as soon as Boeing et al. can build them. I'm encouraged by the sight of language in the NDAA which directs the Air Force to build these into its future procurement plans. However, I think Congress should be more direct here. There is a proven need for this capability, and a proven system that meets the requirement -- it doesn't get much simpler than that in the defense procurement world. Moreover, the services (especially the Army) continue to spend billions of dollars on deployment-related capabilities, when you could easily purchase deployment capability by simply buying more strat lift aircraft.
posted by Phillip Carter at 07:31

 
What is a court martial? My new Explainer in Slate tackles that question, as well as related questions like "who sits on a military jury?". I also recommend this Pentagon press briefing on "Uniform Code of Military Justice and Court Martial Procedures". And if that doesn't quite quench your thirst for information about martial justice in the American military, see "The Seven Basic Myths About Military Justice" in Findlaw.Com's Writ and listen to "Courts Martial - A Primer" on NPR.
posted by Phillip Carter at 16:47

 
Pentagon sets up tribunals to review Gitmo detentions

The Defense Department announced the creation of a new administrative system today which will periodically review the status of detainees being held at Guantanamo bay to see if they merit further detention in America's war on terrorism. The U.S. has come under fire from international law critics for some time, because it has no 'competent tribunal' established in accordance with Art. V of the 3rd Geneva Convention for the review of prisoner status at this facility. The DoD release doesn't explicitly say this process will fit that bill, but it seems obvious to me that it is intended to do so.

Under this order, each enemy combatant will have a formal opportunity to appear in person before a board of three military officers and explain why he believes that he should be released. He will be provided a military officer to assist him in his appearance. In addition, the review board will accept written information from the family and national government of the enemy combatant. Based on all of this information, as well as submissions by other U.S. government agencies, the board will assess the current threat posed by the detainee, then recommend to a high-level Defense of Department official whether the enemy combatant should remain in detention. The DoD official, who will be selected by the secretary of defense, then will decide whether the enemy combatant should remain in detention.

The release of enemy combatants prior to the end of a war is a significant departure from past U.S. wartime practices. Enemy combatants are detained for a very practical reason: to prevent them from returning to the fight. That’s why the law of war permits their detention until the end of an armed conflict. Although the global war on terror is real and ongoing, DoD has decided as a matter of policy to institute these review procedures. This process will assist DoD in fulfilling its commitment to ensure that no one is detained any longer than is warranted.

Query I: Why did DoD wait until now to announce this policy? Query II: Wouldn't it have been more prudent to make this policy change before briefs were submitted (and argument was conducted) in the Al-Odah and Rasul cases before the Supreme Court? The lawyers for the Gitmo detainees made the failure to follow Art. V a key part of their argument. Setting aside for the moment the problem that the 3rd Geneva Convention is not self-executing, they had a good point with this argument, and it seems like the administration could have preempted it by instituting this procedure earlier.

Update: In their briefing to reporters, Pentagon officials said this procedure was not designed to meet the Art. V requirement in the Geneva Convention, and indeed, that the prisoners' status had already been determined somehow.

It's important to put this in context. The review that's undertaken is not legally required. The status of these detainees has been determined: they are enemy combatants detained in the ongoing conflict. As a matter of policy, the department has adopted these procedures so as to not keep any detainee -- basically any detainee for whom the war is over, who is no longer a threat to the United States. We don't want to hold anyone longer than is necessary, and these procedures allow us -- the department an opportunity to review the case of each detainee individually annually to determine whether or not further detention is warranted.

* * *
These procedures are not -- you've referred to competent tribunal, which is -- I think it's a reference to Article 5 of the Geneva Conventions. These procedures are in many respects broader and more substantial than Article 5 proceedings. For example, we are allowing the home government of the detainee to present information on his behalf and his family, for example, to participate and make statements. So it's a different inquiry.

The Article 5, the competent tribunal, is really making a determination about whether a person seized on a battlefield is a prisoner of war or is another -- or it falls into some other type of activity. For these detainees at Guantanamo, that decision has already been made. This decision is about whether or not they still constitute a threat to the United States and can be released or transferred consistent with U.S. national security interests.

Had I written that italicized statement on a law school exam, my professors would have circled it and marked it for being "conclusory." The fact of the matter is that these prisoners have not had their status properly adjudicated under international law. The administration has made a determination that they qualify as enemy combatants, but we know nothing about how this determination was made. It may or may not be a "competent tribunal" in accordance with the Convention. Ironically, thousands of detainees have had their status adjudicated by Art. V tribunals in Iraq, yet we refuse to institute them at Gitmo. That just doesn't make sense to me. Given the spotlight on Gitmo, we ought to be more careful about the way we do things there, not less so.
posted by Phillip Carter at 13:22

 
Remember the Phraselator?

I wrote about this new hand-held translation device, and other interesting military gizmos, in a Slate article covering DARPA's symposium in Anaheim California. Now, the Baltimore Sun has an interesting report on the way this gadget is being used in the field.

Near Iraq's border with Kuwait, Sean P. Collins, a Special Forces team sergeant, met a group of children and asked them if they had seen the enemy.

He spoke into a hand-held black box, called the Phraselator, which translated his English into Arabic and broadcast it clearly through a speaker.

The children pointed to a weapons cache, which included a mortar tube that was ready to be used and rocket-propelled grenades, which Collins destroyed.

"Finding the weapons cache with the kids ... never would have happened if I didn't pull out the unit," said Collins, who noted that several military teams had previously passed through the area without detecting the weapons. "It is an excellent device; there is nothing else like it."

VoxTec, the Annapolis maker of the Phraselator, is counting on testimonials like Collins' to make the high-tech translation device popular enough to be close at hand for U.S. troops around the world.

The Defense Department has already ordered about 2,000 units, which sell for about $2,300 each. That's on top of 1,000 test units sold in 2002 for use in Afghanistan, said Ace J. Sarich, VoxTec's founder and a former Navy SEAL.

He hopes to sell another 3,000 by the end of the year, most of them to the military. But he sees a growing market in law enforcement and hospitals where the unit could be used by police officers and physicians, nurses and emergency medical specialists to communicate with non-English speakers. He also plans to design a slimmer version for tourists that would sell for about $500.

"We are aggressively expanding," said Sarich, 60. "Now we are ready to pound our swords into plowshares and take a military technology and make it ready for the population as a whole."

Note: I criticize the military industrial complex a lot, and have written on the need to rein in government contractors overseas. But I don't want to distort the real picture. Most government contractors do an outstanding job for the U.S. taxpayer and U.S. military. They provide things to our troops that no other force in the world has, like the Phraselator, and they work hard to make the customer (i.e. the warfighter) happy. There is friction in the system, but I think that's necessary because of the need for oversight and transparency. Overall, however, I think companies like VoxTech do a great job, and I'm not averse to singling them out for praise.
posted by Phillip Carter at 07:46

 
U.S. to pull forces from Korea to bolster Iraq force
One more sign of overstretch for America's land combat forces

The Los Angeles Times reports today on a move by the Pentagon (full briefing here) to pull the 2nd Brigade Combat Team out of the 2nd Infantry Division in Korea for duty in Iraq. Soldiers in Korea are already serving a 1-year hardship tour, and they would be sent to Iraq (as a unit) for another 1-year tour, and possibly, then back to Korea. The move is another sign that the Army is seriously stretching to make ends meet in Iraq.

The U.S. military planned to reduce the number of troops in Iraq to about 115,000 this spring, but the fierceness of the insurgency has forced it to change plans. Defense officials announced this month that the Pentagon planned to keep at least 135,000 troops in Iraq for the next year and a half. The military official said Monday that the number could be as high as 138,000 for the next year.

With tens of thousands of service men and women in Iraq already serving well past the time they thought they would be going home, replacements have to come from somewhere.

Pentagon plans call for sending the 2nd Brigade of the 2nd Infantry Division from South Korea to Iraq. The planned one-year tour in the war zone will mean that most of the soldiers will be deployed for the unusually long period of 18 to 24 months.

But unlike other Army units that could have been sent to the fight, the troops based in South Korea have not served in either Afghanistan or Iraq.

"This is the right unit at this time," the senior military official said.

The war in Iraq, the official added, "is placing a demand, clearly, on the force."

* * *
The 37,000 U.S. troops guarding South Korea had been considered untouchable by the Pentagon for deployment to other trouble spots because of the risk of attack from communist North Korea's 1.1-million-member military.

However, Defense Secretary Donald H. Rumsfeld has been pushing for more flexibility to deploy troops to such conflict zones as Iraq or Afghanistan from anywhere in the world. Pentagon officials said that in response they had moved sophisticated aircraft and the Army's latest infantry vehicles, called Strykers, to the Korean peninsula over the past year.

Analysis: This is a big development. The force in Korea has been considered untouchable by Army planners for a long time. Indeed, forces in the states that were dedicated to Korea on paper contingency plans were considered untouchable prior to the war in Iraq. The military takes the Korea mission very seriously, because of the austere force there and the vital role it plays in providing stability for the Korean peninsula and the East Asian region. The redeployment of this brigade means a lot less combat power (in terms of boots on the ground) for any crisis in Korea, whether it be a military conflict, regime collapse, humanitarian disaster, or all three.

This isn't the only sign of overstretch to surface recently. I've heard through the grapevine that the Army has drawn up plans to deploy the 11th Armored Cavalry Regiment, its vaunted National Training Center "OPFOR", from the California desert to the Iraqi desert. There simply isn't a great need for this unit at NTC right now, because so many units are in Iraq that the NTC doesn't have a regular rotation schedule these days. (Query: doesn't it make sense to maintain a first-rate desert training center to train/certify deploying units?) The Army is also considering plans to call up more reservists, including inactive reservists who don't drill or train regularly. And right now, the Army is having difficulty filling its professional schools, because so many officers and sergeants are deployed that it can't get them through the educational pipeline. This will have serious second/third order effects down the road because of the Army's inflexible promotion timelines.

Bottom line: the force is stretched, and it's starting to take very drastic steps to make ends meet in Iraq. Will it make the mission? Yes, no question. But the cost will be very high, and ultimately, I think we're going to end up doing a lot of long-term damage to our national military capability.

Update: Joe Galloway, the veteran war correspondent who co-wrote We Were Soldiers Once... and Young, confirms this story today with a report on Knight Ridder's newswire.

The Army on Tuesday confirmed that it pulled the files of some 17,000 people in the Individual Ready Reserve, the nation's pool of former soldiers. The Army has been screening them for critically needed specialists and has called about 100 of them since January.

Under the current authorization from Defense Secretary Donald H. Rumsfeld, the Army could call as many as 6,500 back on active duty involuntarily.

"Yes we are screening them and, yes, we are calling some of them up," an Army spokesman, Col. Joseph Curtin, told Knight Ridder. "We need certain specialties, including civil affairs, military police, some advanced medical specialists, such as orthopedic surgeons, psychological operations, military intelligence interrogators."

The Army has been forced to look to the Individual Ready Reserve pool and elsewhere for soldiers because it's been stretched so thin by a recent decision to maintain American troop levels in Iraq at 135,000 to 138,000 at least through 2005.

A certain amount of realism is in order here. We have military reserves -- active, inactive, standby, etc. -- for a reason. The reserves exist to back up America's military in case of a war, and we are at war right now. So while I think this is a bad sign, I also recognize that these reserves exist for the very thing they're now being called on to do. However, the reserves have not been stressed like this in a long time, and the individual ready reserve hasn't been tapped en masse since Korea. Remember -- Desert Storm and the Balkans deployments were, for reserve units, a one-shot deal. In contrast, Operation Iraqi Freedom is a sustained combat deployment that requires 135,000 troops for consecutive deployments, at the same time that deployments to Afghanistan and elsewhere must be accomplished.

I think it's time to start thinking realistically about what it will take to accomplish this mission. This plan should not be based on the optimistic assumptions tossed around the Pentagon's top policy shop, or by Deputy Defense Secretary Paul Wolfowitz. This plan, like any good plan, should account for best, middle and worst-case scenarios, projecting what the Army will do if it has to maintain a force in Iraq of its current size (or larger) for the next 5-10 years. Ideally, we should've had this plan worked out before the war, because it might have dictated a few things we should've done during and immediately after the war. But we didn't, as has been well documented. It's high time to create such a plan, and to ensure it's based on reality, even if that reality is ugly.
posted by Phillip Carter at 07:23

 
Admin note: I'm traveling for the next two days and will have intermittent Internet access while I'm on the road and in the air. Please come back for more analysis and commentary on Tuesday. Thanks.
posted by Phillip Carter at 16:10

 
A brilliant picture: On the front page of the New York Times for May 15, 2004, you will find one of the most artful photographs from Iraq that I have seen yet. It depicts a 1st Armored Division soldier kneeling before a doorway with light streaming through, underneath three sacred Islamic portraits. It's the kind of photograph that instantly catches your eye because of its composition, and the messages it carries. On the one hand, one can see the image of a Crusader from a millenium ago in the photograph; on the other, I see an American soldier kneeling in penitent respect before the symbols of Islam. There are other symbols in the picture as well. Anyway, take a look.
posted by Phillip Carter at 18:50

 
Authorized at the highest levels?

The New Yorker has published Sy Hersh's latest piece on the abuses of prisoners at Abu Ghraib and elsewhere. I think his first piece was the biggest, because of the bombshell it literally dropped on the White House and the nation. But this article may contain the most damaging allegations of all for the Pentagon's senior leadership. According to Hersh, the use of "torture lite" and other coercive tactics was not only condoned at the highest levels -- it was explicitly ordered under a covert "special-access program" by the SecDef and his top lieutenants.

The Abu Ghraib story began, in a sense, just weeks after the September 11, 2001, attacks, with the American bombing of Afghanistan. Almost from the start, the Administration’s search for Al Qaeda members in the war zone, and its worldwide search for terrorists, came up against major command-and-control problems. For example, combat forces that had Al Qaeda targets in sight had to obtain legal clearance before firing on them. On October 7th, the night the bombing began, an unmanned Predator aircraft tracked an automobile convoy that, American intelligence believed, contained Mullah Muhammad Omar, the Taliban leader. A lawyer on duty at the United States Central Command headquarters, in Tampa, Florida, refused to authorize a strike. By the time an attack was approved, the target was out of reach. Rumsfeld was apoplectic over what he saw as a self-defeating hesitation to attack that was due to political correctness. One officer described him to me that fall as “kicking a lot of glass and breaking doors.” In November, the Washington Post reported that, as many as ten times since early October, Air Force pilots believed they’d had senior Al Qaeda and Taliban members in their sights but had been unable to act in time because of legalistic hurdles. There were similar problems throughout the world, as American Special Forces units seeking to move quickly against suspected terrorist cells were compelled to get prior approval from local American ambassadors and brief their superiors in the chain of command.

Rumsfeld reacted in his usual direct fashion: he authorized the establishment of a highly secret program that was given blanket advance approval to kill or capture and, if possible, interrogate “high value” targets in the Bush Administration’s war on terror. A special-access program, or sap—subject to the Defense Department’s most stringent level of security—was set up, with an office in a secure area of the Pentagon. The program would recruit operatives and acquire the necessary equipment, including aircraft, and would keep its activities under wraps. America’s most successful intelligence operations during the Cold War had been saps, including the Navy’s submarine penetration of underwater cables used by the Soviet high command and construction of the Air Force’s stealth bomber. All the so-called “black” programs had one element in common: the Secretary of Defense, or his deputy, had to conclude that the normal military classification restraints did not provide enough security.

“Rumsfeld’s goal was to get a capability in place to take on a high-value target—a standup group to hit quickly,” a former high-level intelligence official told me. “He got all the agencies together—the C.I.A. and the N.S.A.—to get pre-approval in place. Just say the code word and go.” The operation had across-the-board approval from Rumsfeld and from Condoleezza Rice, the national-security adviser. President Bush was informed of the existence of the program, the former intelligence official said.

This information is useful as background, and it certainly explains the existence of these tactics in the context of the larger war on terrorism. However, the most interesting stuff (to me) comes later in the story, and may explain some of why the 800th MP Brigade did so little to command & control their soldiers at Abu Ghraib. It also may explain why the prosecution has been so weak so far, charging just junior soldiers and no senior NCOs or officers.

The abuses at Abu Ghraib were exposed on January 13th, when Joseph Darby, a young military policeman assigned to Abu Ghraib, reported the wrongdoing to the Army’s Criminal Investigations Division. He also turned over a CD full of photographs. Within three days, a report made its way to Donald Rumsfeld, who informed President Bush.

The inquiry presented a dilemma for the Pentagon. The C.I.D. had to be allowed to continue, the former intelligence official said. “You can’t cover it up. You have to prosecute these guys for being off the reservation. But how do you prosecute them when they were covered by the special-access program? So you hope that maybe it’ll go away.” The Pentagon’s attitude last January, he said, was “Somebody got caught with some photos. What’s the big deal? Take care of it.” Rumsfeld’s explanation to the White House, the official added, was reassuring: “‘We’ve got a glitch in the program. We’ll prosecute it.’ The cover story was that some kids got out of control.”

* * *
Sometime before the Abu Ghraib abuses became public, the former intelligence official told me, Miller was “read in”—that is, briefed—on the special-access operation. In April, Miller returned to Baghdad to assume control of the Iraqi prisons; once the scandal hit, with its glaring headlines, General Sanchez presented him to the American and international media as the general who would clean up the Iraqi prison system and instill respect for the Geneva Conventions. “His job is to save what he can,” the former official said. “He’s there to protect the program while limiting any loss of core capability.” As for Antonio Taguba, the former intelligence official added, “He goes into it not knowing shit. And then: ‘Holy cow! What’s going on?’”

If this is all true, then the responsibility for Abu Ghraib belongs to the Secretary of Defense and his top assistants who directed and controlled this problem. Just as we would hold field commanders vicariously liable for their subordinates' criminal actions under the "command responsibility" doctrine, so too should hold the SecDef accountable if it turns out that he did direct these things to be done. Indeed, we send a very dangerous message by not holding these top officials accountable in the same way that these junior soldiers are by a court martial this week. That message is: senior leaders are not responsible for their actions, and soldiers will hang for the actions of their superiors. Suffice to say, that message does not support a good command climate for America's military.

Indeed, if the SAP was as tightly controlled as Mr. Hersh indicates, then commmand responsibility may skip a number of links in the chain of command. True culpability here may jump from the Pentagon down to the actual MI officers and MP soldiers who conducted abuses. That's because the MP leadership was almost certainly cut out of the loop for this clandestine program, and there were probably security measures in place which prevented them from learning about this stuff. This undermines what I've written so far on the culpability of the 800th MP Brigade leadership, but I think it's a reasonable point to deduce from this New Yorker story. If this report is true, then officers like BG Janis Karpinski and LTC Jerry Phillabaum may not have much legal culpability here, beyond the failure to establish effective command & control systems that would detect abuses like this within their units. But even that might not be true, if the spooks used measures to interdict the efforts of Karpinski and Phillabaum to learn what was going on.

There's another point here, which relates to unlawful orders and the ability of soldiers to identify them and disobey them. Imagine you're an Army Specialist in the field, and let's stipulate that you did get substantial amounts of training on the Geneva Conventions and the laws of armed conflict. Now imagine you've gotten brought into a black op that's been sanctioned by the top levels of the Pentagon, and explicitly blessed by the DoD Office of General Counsel. Who are you, SPC Joe Snuffy, to question the legal judgment of America's top national security lawyers? It would have been very hard to question orders to put a detainee in a stress position, or to use sleep deprivation, when such orders carried the imprimatur of the SecDef and his top legal advisor.

The question for me, therefore, is what exactly was authorized by this special program, and whether the MPs went a little further in their sexual abuse. I can easily believe that the Pentagon blessed such tactics as stress positions and sleep deprivation; after all, such things are taught in our own military's SERE schools. But I still find it difficult to believe that our military and its top political appointees would endorse the use of sexual humiliation and sexual assault. If they did, those were probably unlawful orders, and the soldiers should have disobeyed them notwithstanding the stamp of authority they carried. But we should also look at the individuals who gave those orders, whether they work in Baghdad or Washington.

Only one thing is certain -- the civilian and JAG lawyers assigned to the defense for this case are going to have a field day with this story.

Update I: The Pentagon just issued a press released titled "Statement from DoD Spokesperson Mr. Lawrence Di Rita" in direct respose to the Hersh piece:

"Assertions apparently being made in the latest New Yorker article on Abu Ghraib and the abuse of Iraqi detainees are outlandish, conspiratorial, and filled with error and anonymous conjecture.

"The abuse evidenced in the videos and photos, and any similar abuse that may come to light in any of the ongoing half dozen investigations into this matter, has no basis in any sanctioned program, training manual, instruction, or order in the Department of Defense.

"No responsible official of the Department of Defense approved any program that could conceivably have been intended to result in such abuses as witnessed in the recent photos and videos.

"To correct one of the many errors in fact, Undersecretary Cambone has no responsibility, nor has he had any responsibility in the past, for detainee or interrogation programs in Afghanistan, Iraq, or anywhere else in the world.

"This story seems to reflect the fevered insights of those with little, if any, connection to the activities in the Department of Defense."

Everytime I see damning reports like that in the New Yorker juxtaposed against categorical denials like this one, I'm tempted to think of the motto from the X-Files: The truth is out there.

Update II: Sunday's NY Times carries a report on the Sy Hersh story, as well as the Pentagon's response to it. Maybe I'm parsing words too closely; I hear that's an occupational hazard for lawyers. But check out what the DoD spokesman told the Times:

"It's pure, unadulterated fantasy," Mr. Di Rita said in a telephone interview. "We don't discuss covert programs, but nothing in any covert program would have led anyone to sanction activity like what was seen on those videos."

"No responsible official in this department, including Secretary Rumsfeld, would or could have been involved in sanctioning the physical coercion or sexual humiliation of Iraqi prisoners," Mr. Di Rita said.

This isn't exactly an unequivocal denial. For one thing, it leaves open the possibility that the Pentagon might have sanctioned what was depicted in the many photographs now in the public domain. Second, it makes you wonder just what is in the videos shown to Congress and senior members of the executive branch. This story is just growing its legs -- more to follow.
posted by Phillip Carter at 18:00

 
Army changes its rules for interrogation

John Hendren reports in the L.A. Times that the Army has issued new orders to its spooks in the field telling them what they can and cannot do during interrogations -- mostly what they cannot do. These rules are presumably designed to end the kinds of abuses done at Abu Ghraib, by sending a clear message to everyone in the chain of command that no one shall "set the conditions" for interrogation through physical and mental abuse.

Under the changes, interrogators will no longer be able to ask for permission to expose prisoners to military dogs, to alter prisoners' diets or force them to stand or squat in uncomfortable positions -- techniques that have been criticized as beyond the limits of the Geneva Conventions.

However, many of the questionable techniques have not been used recently, and others very sparsely, said two senior military officials in briefing Pentagon reporters.

The only extreme techniques that will continue to be allowed are solitary confinement and isolation from other prisoners.

* * *
The changes detailed today apply only to the interrogation of prisoners in Iraq. Although Defense Secretary Donald H. Rumsfeld and other Pentagon strategists have said the detainees at the U.S. Naval Base at Guantanamo Bay, Cuba, are being treated in accordance with the Geneva Conventions, the new rules represent a "scrubbed'" and shortened version of the rules for questioning being used at Guantanamo, officials said.

Analysis: This is just a baby step in the right direction. I know that change is often incremental and evolutionary (as opposed to revolutionary) in large bureaucracies like the Army. But unfortunately, merely telling the Army intelligence commmunity that it must adhere to the rules isn't enough. These new rules don't apply to the other services, to some special operations units, and to the Central Intelligence Agency. And as the article points out, these rules only apply to Iraq -- not Gitmo, Bahrain, Qatar, Diego Garcia, or anywhere else that the U.S. has prisoners detained right now. I know there's a balance to be struck between tough interrogations that produce actionable intel, and torture sessions that resemble the rack. But this just seems like window dressing, and I think a lot more needs to be done to comply with international law here.
posted by Phillip Carter at 17:05

 
"Methods too close to the rack and the screw": Slate has just published my Jurisprudence article "Tainted by Torture" on the legal problems associated with the use of "intensive questioning" in certain cases. The crux of the argument is that evidence gotten through torture is inadmissible, thus, the use of torture on terrorists means that they (and possibly their confederates) cannot be effectively prosecuted in federal court.
posted by Phillip Carter at 12:44

 
Tech help: If you run a blog hosting server or have any recommendations for new blog software, please let me know. Blogger has moved to a new software interface that is extremely unreliable. (Example: this short post took three takes to put online.) I intend to move this site to www.intel-dump.com and a new software suite as soon as possible, and would appreciate any input from tech-savvy readers as to the best way to do that.
posted by Phillip Carter at 10:10

 
Gitmo translator released before trial: More to follow later. It appears that defense attorneys for Airman Ahmad Halabi have won a stunning victory before a military judge to allow their client to be released from the brig pending his trial. A team of military attorneys is working with civilian attorney Donald Rehkopf, an expert in military law with decades of experience, on this case. I am told there are additional surprises in store for the prosecution and court here... more to follow.
posted by Phillip Carter at 10:10

 
Congress Takes a Second Helping of Grilled Wolfowitz

If there's one guy who can be relied on to provoke intense questioning from the Senate and House Armed Services Committee, it's Deputy Defense Secretary Paul Wolfowitz. Last year, the Senate Foreign Relations Committee grilled him in extremis for the failures to plan for post-war Iraq. Yesterday, according to Tom Ricks in the Washington Post, the Senate Armed Services Committee took its turn by excoriating the embattled appointee for the Abu Ghraib mess. As best I can tell, it does not look like Wolfowitz did or said much in response.

Senate Democrats lit into the Bush administration's Iraq policies yesterday, using an uncharacteristically contentious hearing on additional war spending to attack the Pentagon's number two official in personal and bitter terms.

After listening to Deputy Defense Secretary Paul D. Wolfowitz testify before the normally stately Armed Services Committee for several hours, Sen. Jack Reed (D-R.I.) said, "What I've heard from you is dissembling and avoidance of answers, lack of knowledge, pleading process -- legal process."

Sen. Hillary Rodham Clinton (D-N.Y.) then hit Wolfowitz, who is seen as a major architect of the Bush administration's approach to Iraq, with a virtual indictment. "You come before this committee . . . having seriously undermined your credibility over a number of years now," she said. "When it comes to making estimates or predictions about what will occur in Iraq, and what will be the costs in lives and money, . . . you have made numerous predictions, time and time again, that have turned out to be untrue and were based on faulty assumptions."

She quoted to him from his previous testimony from the run-up to the war, in which he asserted that the Iraqi people would see the United States as their liberator, that Iraq could finance its own reconstruction and that the estimate of Gen. Eric Shinseki, then the Army chief of staff, that it would take several hundred thousand troops to occupy Iraq was "outlandish."

Sen. Robert Byrd (D-W.Va.), usually the committee's fiercest critic of the Bush administration's stance on Iraq, seemed almost tame by comparison. He used his questioning time simply to criticize the administration's "arrogance" and remind colleagues to fulfill their constitutional duties.

Analysis: As Austin Powers might say: "Ouch, baby, that hurts." Personally, I think the Senate Democrats are spot-on with their criticism, and I'm amazed at the level of alacrity shown by top Pentagon officials like Mr. Wolfowitz. The fact that these guys weren't excused for their post-war planning failures and WMD detection failures is amazing, particularly when you consider the way that former-Army Sec. Tom White and former-Army Chief of Staff Gen. Eric Shinseki were summarily sacked. Ironically, those Army leaders didn't even screw up the way that the top OSD officials have; their crime was to clash with their bosses, and break from the Rumsfeldian ranks. So, I'm somewhat happy to see the Congressional oversight committee for the Pentagon taking this deputy cabinet secretary to task, and I hope they do more of it as the 2005 National Defense Authorization Act is considered over the next few months by Congress.

Of course, what this makes clear is that Secretary Rumsfeld is absolutely not going to step down, at least not unless Wolfowitz does too. As much as Congress may be upset at Secretary Rumsfeld, they don't have nearly the level of contempt for him that they do for his deputy. And, we haven't yet reached the "tipping point" where letting Rumsfeld go is more expedient than letting him stay, as Fred Kaplan explains in Slate. Plus, as Mr. Kaplan explains, the entire OSD inner circle (including Wolfowitz) has been tainted by the WMD failures and post-war planning failures, and you'd basically have to replace the whole tumerous brain in the Pentagon to achieve any substantive change. In an election year, with a war on, that's not going to happen. It may make sense politically to call for Rumsfeld's resignation in the wake of Abu Ghraib. But practically speaking, I just don't see it happening.
posted by Phillip Carter at 08:50

 
First MP to face trial speaks up
Whose version of the truth is the truth?

Richard Serrano breaks an exclusive story in the LA Times this evening about what Army SPC Jeremy Sivits will confess to after the pleads guilty to a special court martial next week in Iraq. So far, military law pundits like me think that Sivits is being induced to plead guilty so that prosecutors will have at least one MP on the inside testifying for them, if for no other reason than to explain what's going on in all those awful photographs.

Sivits, who according to sources is expected to plead guilty at a court-martial proceeding next week in Baghdad, also gave fresh details about the other suspects in the beating of Iraqi prisoners - for the first time describing their moods as the prisoners were stripped and abused.

He also maintained, according to the documents, that all of this was done without the knowledge of their superiors in the Army chain of command.

"Our command would have slammed us," he said. "They believe in doing the right thing. If they saw what was going on, there would be hell to pay."

He said Graner warned him not to say anything, telling him: "You did not see (this)."

Graner's lawyers have said he and other soldiers were under pressure by military interrogators to "soften up" the detainees to get intelligence. All the other soldiers are expected to plead not guilty.

Sivits said he first became aware of the abuse, and began photographing much of it, on Oct. 3, nearly a month before the early November dates believed to have been the start of the harsh treatment against inmates in the overcrowded prison.

Analysis: I'm not yet ready to believe everything this guy says, or buy into this Specialist's testimony as the absolute truth. But if he's right, it still may not let the command off the hook. The fact that they didn't know about these events isn't enough. If they should have known about them, by doing proper nighttime inspections and spot-checks, and they didn't know, then they're still legally culpable. More to follow...

Update I -- Pointing Fingers: Chris Cooper reports in the Wall Street Journal (subscription required) on the story being advanced by Army SPC Charles Graner, which predictably, is at odds with that being advanced by SPC Sivits. What's the real truth? Who knows -- I'm sure it's out there somewhere. But in SPC Graner's case, he's got another strike against him: an adultery charge founded on his apparent affair with PFC Lynndie England (who is now pregnant with Graner's baby). This charge will probably have some effect on SPC Graner's credibility, and it'll probably be a slam dunk for the prosecution assuming they can medically prove paternity.

To me, this is starting to look like the final fatal scene in Quentin Tarantino's cult classic Resevoir Dogs, where all of the main characters engage in an armed standoff that ends in absolute bloodshed. Of course, the defendants here don't have pistols pointed at each other; just their future court testimony. But I still predict the same outcome -- total failure for all of these defendants when they try to point fingers in their courts martial. You see, military juries are really good at cutting through the smoke & mirrors typically thrown up by defense attorneys. The saying goes that if you're innocent, it's good to be before a military jury, but if you're guilty, it's bad to be before a military jury. I think these MPs are about to find out the reason for that maxim.

Update II: Noah Shachtman has an interesting article today in Wired News on lie detectors and whether the most advanced of these devices can accurately do its job. Polygraph evidence is generally inadmissable, even in military courts. But I wouldn't be surprised to see one of these MPs strapping on a polygraph to win some points in the court of public opinion.

Update III -- BG Karpinski speaks: The Washington Post hosted a live online discussion with BG Janis Karpinski, the commander of the 800th MP Brigade, which deserves a read from anyone interested in this story. She still hedges a bit on her command responsibility, but I think she actually acquitted herself quite well in this online discussion.
posted by Phillip Carter at 18:14

 
The political book of 2004: Whether you love, hate, or feel indifferently towards him, if you care about American politics, you have to read Bill Clinton's new autobiography My Life, scheduled for release on June 30. Amazon.Com just sent me an e-mail letting me know I could pre-order a copy, which I will probably do, though I doubt I'll read it until after the California bar exam in late July.
posted by Phillip Carter at 17:58

 
A change in leadership at Abu Ghraib
Shift from reserve to active MPs should make a big difference

The Washington Post has a good report today on Defense Secretary Donald Rumsfeld's trip to Iraq and the Abu Ghraib prison. Whether he can salvage his job and our nation's image from this morass remains an open question. But one thing jumped out at me from the text of this story:

Rumsfeld arrived in Baghdad about 1 p.m. (5 a.m. EDT). He met with several top generals, including Lt. Gen. Ricardo S. Sanchez, commander of U.S. forces in Iraq, and was briefed on the status of general activities in Iraq as well as specific issues related to the abuses at Abu Ghraib, before visiting the prison facility.

That tour was bleak. Under a hazy sky, detainees rushed to the edge of concertina wire fences, their raggedy clothes flapping in the wind, many giving thumbs-down gestures to the convoy. Some raised their arms, others shouted, some just stood and watched.

"What are you going to do about this scandal?" read one handwritten sign held by two detainees, who chased the buses as they turned a corner. Another detainee stood nearby and waved a bandaged stump of a leg. "Help," read another sign.

Col. David E. Quantock, commander of the 16th Military Police Brigade and now in charge of the embattled prison's detention operations, said he had to clean up a significant mess upon arrival earlier this year. He said "leadership challenges" before he arrived left some policies in a shambles and necessitated complete overhaul, but now morale is high and the soldiers are working to correct the problems of the past.

"The door was open for abuses," Quantock said. "We had soldiers we put trust in who didn't deserve that trust. The leadership oversight was not in place when I took over. Things have changed."

Analysis: I know Col. Quantock by reputation; a number my soldiers served under him in previous assignments. He is one of the best MP officers in the Army, as evidenced by his command of the 16th Military Police Brigade at Fort Bragg, one of a handful of active-duty MP brigades in the Army. He could not be a more different officer than BG Janis Karpinski, the commander of the 800th MP Brigade. Though she's a 1-star general, she is a reservist, with a fraction of the active-duty time that an equivalent active-duty general would have. I have also been less than impressed by her public statements thus far, which do everything but take responsibility for the things that happened in her unit. In moving to put an active-duty officer like COL Quantock in charge of Abu Ghraib, the Army has effectively replaced a slug with a stud. This is a smart move, and it's long overdue.

I spoke yesterday to a group of Army ROTC cadets on Abu Ghraib, and its leadership and legal issues. Afterwards, we spent a long time discussing the lessons to be learned from this incident. One clear lesson, especially to those who have served both on active duty and in the reserves like me, is that America may need to rethink its policy of relying on the reserves for so much of its military capacity -- especially in critical areas like MP work and Civil Affairs work. Reserve soldiers are great patriotic Americans, and their leaders are too. But quite simply, these reserve officers and NCOs don't have the professional experience, maturity or knowledge to do their jobs as leaders. BG Karpinski may have been a general officer, but in reality, she had only a fraction of the military experience and training that a general should have. Many reserve leaders have civilian jobs, like police work, that reinforce their military occupations. But many more don't. Reserve officers simply can't develop the skill sets necessary for effective command with just 39 days of training per year.

As this investigation goes forward, I think you're going to see a lot more pinned on the leadership failures of the officers in the 800th MP Brigade. Without a doubt, they will say that they weren't themselves trained, or that they weren't competent because they were just reservists. To some extent, they will be right, though I don't think that should excuse them from criminal culpability. What it should do, however, is make us think very hard about our expectations from reserve units. It may not be a good idea to stake so much of our national security on these units when they are underresourced, undertrained, and underequipped. Particularly in the age of the "strategic soldier", where one private's mistake can land on CNN and affect the entire outcome of the war.

Correction: Earlier today, I wrote that BG Karpinski had only a few years of active-duty time, based on my estimate of what a reservist would accrue over a 25-year career. I subsequently learned that I was mistaken, and that she did in fact have a 10-year active duty career before entering the Army Reserve. This note has been adjusted to reflect that fact.
posted by Phillip Carter at 11:18

 
How far can you go in an interrogation?
CIA used coercive measures to question Al Qaeda leaders

That's the implicit question behind this New York Times article, which details some of the interrogation tactics used against top leaders like Khalid Sheikh Mohammed. These tactics, techniques and procedures (TTPs) are coming to light now because of the incidents at Abu Ghraib prison in Iraq. Many think that the overall environment of permissiveness towards coercive interrogations that has been endorsed by the White House and CIA somehow led to the abuses at Abu Ghraib. Perhaps. As the NYT story points out, the CIA will do a lot to squeeze information from those it has in custody.

In the case of Khalid Shaikh Mohammed, a high-level detainee who is believed to have helped plan the attacks of Sept. 11, 2001, C.I.A. interrogators used graduated levels of force, including a technique known as "water boarding," in which a prisoner is strapped down, forcibly pushed under water and made to believe he might drown.

These techniques were authorized by a set of secret rules for the interrogation of high-level Qaeda prisoners, none known to be housed in Iraq, that were endorsed by the Justice Department and the C.I.A. The rules were among the first adopted by the Bush administration after the Sept. 11 attacks for handling detainees and may have helped establish a new understanding throughout the government that officials would have greater freedom to deal harshly with detainees.

Defenders of the operation said the methods stopped short of torture, did not violate American anti-torture statutes, and were necessary to fight a war against a nebulous enemy whose strength and intentions could only be gleaned by extracting information from often uncooperative detainees. Interrogators were trying to find out whether there might be another attack planned against the United States.

The methods employed by the C.I.A. are so severe that senior officials of the Federal Bureau of Investigation have directed its agents to stay out of many of the interviews of the high-level detainees, counterterrorism officials said. The F.B.I. officials have advised the bureau's director, Robert S. Mueller III, that the interrogation techniques, which would be prohibited in criminal cases, could compromise their agents in future criminal cases, the counterterrorism officials said.

After the attacks of Sept. 11, President Bush signed a series of directives authorizing the C.I.A. to conduct a covert war against Osama bin Laden's Qaeda network. The directives empowered the C.I.A. to kill or capture Qaeda leaders, but it is not clear whether the White House approved the specific rules for the interrogations.

The White House and the C.I.A. declined to comment on the matter.

* * *
The C.I.A. has been operating its Qaeda detention system under a series of secret legal opinions by the agency's and Justice Department lawyers. Those rules have provided a legal basis for the use of harsh interrogation techniques, including the water-boarding tactic used against Mr. Mohammed.

* * *
So far, the Bush administration has not said what it intends to do over the long term with any of the high-level detainees, leaving them subject to being imprisoned indefinitely without any access to lawyers, courts or any form of due process.

More analysis to follow on this subject... stay tuned.
posted by Phillip Carter at 07:23

 
Explaining military justice: To learn more about the military justice system and the way that SPC Jeremy Sivits' special court martial will work in Iraq next week, see this background briefing given by a JAG officer at the Pentagon. It covers all of the important legal details, from jury selection to available punishment.
posted by Phillip Carter at 07:54

 
"A Failure of Leadership" - Part II

James D. Villa, an attorney in Washington DC who used to command the now-infamous 372d MP Company, has an excellent op-ed in Wednesday's Washington Post. He makes a number of solid points in this column, and I imagine these abuses would have been caught much earlier had he been in command in late 2003. Here's the part of his argument resonated the most with me:

These actions were the result of huge command failures. The senior person charged thus far is Ivan L. Frederick, a staff sergeant. In an MP company, a person of his rank is normally placed in charge of a squad of 11 soldiers. I refuse to believe that no leader above Frederick was aware of or complicit in the abuses that were apparently widespread throughout the prison. While certain officers were relieved of their commands and other leaders were given letters of reprimand, the failure of unit leaders, from company to brigade, is stunning.

The 372nd has approximately 150 soldiers and is divided into five platoons, four of which consist of MPs. The company commander is directly responsible for all actions taken by his soldiers, or those that they fail to take. The 372nd's commander and the relevant platoon leader either knew or should have known of the actions of their subordinates, as should have their noncommissioned officers. All these leaders failed in their most basic responsibilities of supervising their soldiers in the performance of their duties.

Brig. Gen. Janis L. Karpinski, commander of the 800th MP Brigade, which ran the prison, has spent most of the past week on television telling the same story: that she never knew about this, that her MPs were working for military intelligence people, that she was not to blame. Had she spent as much time leading her troops as she apparently has preparing for appearances on MSNBC (with her lawyer in tow), the Army might have stemmed these incidents early on. I was taught in ROTC that a leader is responsible for what his or her unit does or fails to do. I was also taught that a leader takes responsibility for his or her soldiers. Either by commission or omission, Karpinski and her chain of command have failed those soldiers in her brigade and, ultimately, this country.

Right... but until we see charges preferred against these senior officers and NCOs, the message is that the Army condones and tolerates this derelict behavior by the commanders in the 800th MP Brigade. I'm not really sure what the Army is waiting for. It seems like there's plenty of material in MG Taguba's 6,000-page report upon which to substantiate criminal charges, especially where we're talking about such a clear leadership failure.
posted by Phillip Carter at 22:10

 
"A Failure of Leadership"

The New York Times has the full transcript of today's Senate Armed Services Committee hearing online, and the L.A. Times has a good report on the hearing too. But all you really need to read is the following excerpt from the transcript, involving an exchange between Sen. John Warner and Army MG Antonio Taguba:

SEN. WARNER: I ask the same question to you. In simple laymen's language, so it can be understood, what do you think went wrong, in terms of the failure of discipline and the failure of this interrogation process to be consistent with known regulations, national and international? And also, to what extent do you have knowledge of any participation by other than U.S. military, namely Central Intelligence Agency and/or contractors, in the performance of the interrogations?

GEN. TAGUBA: Sir, as far as your last question, I'll answer that first. The comments about participation of other government agencies or contractors were related to us through interviews that we conducted. It was related to our examination of written statements and, of course, some other records. With regards to your first question, sir, there was a failure of leadership --

* * *
SEN. WARNER: Can you give us a quick synopsis of participation by other U.S. government agencies?

GEN. TAGUBA: Sir, they refer to them as OGAs or MIs. And when I asked for clarification it's because of the way they wore their uniforms. Some of them did not wear a uniform, and so how would I ask them to clarify further if they knew any of these people? And they gave us names, as stipulated on their statements. They also gave us names of those who are MI, uniformed MI in personnel in the U.S. Army, and that was substantiated by the comments made to us by other witnesses as we conducted our interviews.

SEN. WARNER: Right. In simple words, your own soldiers' language, how did this happen?

GEN. TAGUBA: Failure in leadership, sir, from the brigade commander on down; lack of discipline; no training whatsoever; and no supervision. Supervisory omission was rampant. Those are my comments.

Roger that. The brigade commander, BG Janis Karpinski, has become quite proficient at pointing fingers downwards, sideways, and anywhere else but her own chest. So has the battalion commander, LTC Jerry Phillabaum. I have yet to see a military officer in this chain of command fall on his or her sword by taking command responsibility. A military commander is responsible for all that his/her unit does or fails to do. Period. End of discussion. Admirably, Secretary of Defense Donald Rumsfeld took this to heart with his opening statement to SASC last week. Unfortunately, the key leaders in the 800th MP Brigade still don't get it. They still blame others, from the CIA to their own troops, for the things that happened in their units on their watch.

The burden of command is very heavy; it's not an easy job. Commanders must do more than set standards -- they must enforce them too. You can't just tell soldiers to conduct Preventive Maintenance Checks & Services ("PMCS" in Army-speak), you have to physically visit the motor pool to make sure they're doing it. You don't just tell your soldiers to fill their canteens with water; you check them before a patrol to make sure they did. Soldiers do what leaders check. Over time, you may develop trust in a unit that lets you back off some aspects of direct supervision. But even then, you still go down to the motor pool during PMCS, even if it's just to shoot the breeze with your troops. That's what leadership is all about. It's not enough to simply pass on policy guidance from higher HQ about the Geneva Conventions and prisoner treatment. Leaders must physically check their soldiers' performance to ensure the standards are being met. Higher level commanders must also physically inspect what's going on, to ensure that the right thing is being done.

Soldiers do what leaders check. It's a fundamental principle hammered into every lieutenant at the National Training Center, Joint Readiness Training Center, Ranger School, and countless other leadership-training courses. But it wasn't followed here. The leaders in this MP brigade slacked off. I'll give them the benefit of the doubt -- they probably did establish some standards of behavior for their MPs. But they failed to enforce them. They failed to get up and make midnight spot-checks on their troops. They failed to establish supervisory systems to ensure the standards were being met. And the result was that this behavior went on for far too long, undetected and unchecked.

Ultimately, these leaders must be held accountable for these failures. Administrative reprimands, like the ones given so far, are wholly insufficient in my opinion. The Army is prosecuting soldiers for criminal conduct at Abu Ghraib; it should prosecute their leaders as well. What sort of a messages does it send to the average soldier in the field when you hammer these junior troops but let their officers off with a slap on the wrist? Not a good one, in my opinion.
posted by Phillip Carter at 18:20

 
Another sign of military overstretch
Bradleys near the DMZ go without parts because of war in Iraq

Seth Robson reports in Pacific Stars & Stripes that the Army's 2nd Infantry Division is having difficulty maintaining its fleet of M2 Bradley Fighting Vehicles because of spare parts shortages caused by the war in Iraq. Specifically, Bradleys are forced to drive on worn-out tracks because there is a global shortage of this part right now, driven by the use of Bradleys in Iraq.

All 58 Bradleys operated by 2nd Infantry Division’s 2nd Battalion are running on worn-out track, said Capt. Robert Richardson, maintenance officer for the 2nd Infantry Division’s 2nd Battalion, 9th Infantry Regiment.

Each Bradley has 166 blocks of track. The blocks, which cost $140 each to replace, are made of steel and rubber. Dozens of pins link them together to form the tracks. When the rubber on the blocks wears out, they need to be replaced, just like bald tires.

“Our track is getting worn out by all the driving we do on concrete and roads. I have got one over there with no rubber on the left side,” Richardson said, pointing to a disabled Bradley languishing in a corner of the maintenance bay at Rodriguez Range.

Normally, the mechanics would replace worn out blocks with new track. However, the need to supply track to vehicles in Iraq and Afghanistan means there is not enough for vehicles in South Korea, he said.

“It becomes a safety issue after a while,” Richardson said.

* * *
At least one of 2-9’s Bradleys is out of commission because mechanics have taken the good track from it to use on other vehicles, Richardson said.

“We’re not allowed to cannibalize. It is called controlled substitution,” Richardson explained. “It is something we are having to do because we are not getting replacements.”

If war with North Korea broke out tomorrow, some of 2-9’s Bradleys would not be able to move immediately because of worn out tracks, Richardson said.

Analysis: And that's the bottom line, folks. If we have to go to war tomorrow in Korea, or anywhere else, we will be less ready to fight as a direct consequence of the war in Iraq. This is a point that I wrote about in this American Prospect article "Be Unprepared", and a point I reiterated in this Slate article "Hollow Force." It is also a point hammered home by Nick Confessore in his March 2003 article "GI Woe", as well by James Fallows' article "Hollow Army" in the Atlantic Monthly. Ideally, our military should retain some amount of excess capacity at any given time with which to respond to immediate crises. This capacity shouldn't just mean tanks and planes and soldiers, but spare parts to fix the force and bombs to arm it. The military spent some of this capacity for Operation Desert Fox in 1998, and for Kosovo in 1999, but it rebuilt those shortages with funding in 2000 and 2001. Unfortunately, the military expended nearly all of its surplus capacity to fight the war in Iraq, with the result that we are now less ready to respond to threats abroad if/when they should arise.
posted by Phillip Carter at 15:50

 
Marines decorated for valor in Iraq

Amidst the news of prison abuse by U.S. soldier and civilian interrogators in Iraq, I think it's important to recognize the fact that the overwhelming majority of American military personnel do an outstanding job, wherever they're stationed. It's also important to recognize that some American warriors go much, much further than what's expected of them, demonstrating courage and valor in ways that make Hollywood movies look tame by comparison.

Recently, the Marine Corps recognized several of its young warriors who clearly went above and beyond the call of duty in Iraq. Separately, the Marine Corps has also recognized 608 of its personnel in the 1st Marine Divisions with Purple Heart medals for wounds sustained in combat as the result of enemy action. Here are a few of the stories relating to Marines recognized for valor in action:

Captain Brian R. Chontosh - The Navy Cross

While leading his platoon north on Highway 1 toward Ad Diwaniyah, Chontosh's platoon moved into a coordinated ambush of mortars, rocket propelled grenades and automatic weapons fire. With coalitions tanks blocking the road ahead, he realized his platoon was caught in a kill zone.

He had his driver move the vehicle through a breach along his flank, where he was immediately taken under fire from an entrenched machine gun. Without hesitation, Chontosh ordered the driver to advanced directly at the enemy position enabling his .50 caliber machine gunner to silence the enemy.

He then directed his driver into the enemy trench, where he exited his vehicle and began to clear the trench with an M16A2 service rifle and 9 millimeter pistol. His ammunition depleted, Chontosh, with complete disregard for his safety, twice picked up discarded enemy rifles and continued his ferocious attack.

When a Marine following him found an enemy rocket propelled grenade launcher, Chontosh used it to destroy yet another group of enemy soldiers.

When his audacious attack ended, he had cleared over 200 meters of the enemy trench, killing more than 20 enemy soldiers and wounding several others.

Pfc. Joseph B. Perez - The Navy Cross

1st Platoon came under intense enemy fire while clearing near Route 6 during the advance into Baghdad. Perez, the point man for the lead squad, and therefore the most exposed member of the platoon, came under the majority of these fires.

Without hesitation, he continuously fired his M16A4 rifle to destroy the enemy while calmly directing accurate fires for his squad. He led the charge down a trench destroying the enemy and while closing and under tremendous enemy fire, threw a grenade into a trench that the enemy was occupying.

While under a heavy volume of fire, Perez fired an AT-4 rocket into a machine gun bunker, completely destroying it and killing four enemy personnel. His actions enabled the squad to maneuver safely to the enemy position and seize it.

In an effort to link up with 3rd Platoon on his platoon's left flank, Perez continued to destroy enemy combatants with precision rifle fire. As he worked his way to the left, he was hit by enemy fire, sustaining gunshot wounds to his torso and shoulder. Despite being seriously injured, Perez directed the squad to take cover and gave the squad accurate fire direction to the enemy that enabled the squad to reorganize and destroy the enemy.

Cpl. Armand E. McCormick - Silver Star

Under heavy fire McCormick, a lance corporal at the time, exhibited exceptional bravery when the lead elements of his battalion were ambushed with mortars, rocket propelled grenades, and squad automatic weapons fire. Fearlessly he drove his lightly armored vehicle directly at an enemy machine gun position and purposely crashed it into an occupied trench line.

With the initial breach of the enemy defense now gained for his unit, he sprang from the vehicle and began assaulting the berm and ambush line with two Marines. Taking direct fire, and outnumbered, he pressed forward, firing his M9 pistol at enemy forces. Moving through the trench, he repeatedly came under enemy fire, each time calmly taking well-aimed shots.

As the group ran low on ammunition, he collected enemy rifles and a rocket-
propelled grenade and continued to press the attack forward several hundred meters. As
a follow-on company began to make their entrance into the berm, he returned to his vehicle and backed it out of the trench. McCormick's boldly aggressive actions greatly reduced the enemy's ability to inflict casualties on the rest of his battalion.

Cpl. Robert P. Kerman - Silver Star

Kerman exhibited exceptional bravery when the lead elements of the battalion were ambushed with mortars, rocket propelled grenades and automatic weapons fire.

As the vehicle he was traveling in drove directly into machine gun fire and into a trench line, Kerman sprang from the vehicle and began assaulting down the enemy occupied trench with two other Marines. As the enemy soldiers fired at him, he fearlessly plunged towards them firing his M16 with lethal accuracy. Continuing to move through the trench he repeatedly came under enemy fire.

Each time he would calmly occupy a steady firing position and take well-aimed shots that had devastating effects in the enemy.

As the group ran out of ammunition, they pressed forward 200 to 300 meters utilizing captured enemy AK-47s.

He showed no regard for his own personal safety, and his actions directly contributed to the successful outcome of the engagement.

Cpl. Timothy C. Tardif - Silver Star

During the At Tarmiyah Battle, located 30 kilometers north of Baghdad, Tardif and his squad reinforced his platoon, which was pinned down in a violent enemy crossfire ambush.

Immediately assessing the situation, he directed Marines to return fire into enemy positions in a town. He identified the location of the enemy, and determined the precise point in which to assault the enemy.

Tardif then charged across a road under intense small arms and rocket-propelled grenade fire, inspiring his Marines to follow his example. Engaged in an intense close-quarters battle, he received shrapnel wounds from an enemy grenade. Tardif refused medical attention and continued leading his squad in an assault on an enemy-held compound.

After securing the compound, Tardif egressed on order and led his reinforced squad in a fighting withdrawal. Tardif collapsed after traveling 150 meters from wounds suffered during fighting.

Comment: The actions of these Marines speak for themselves, and require little analysis or commentary from me. However, I would like to point out the humility with which these Marines responded to their recognition. These guys, like Pat Tillman, ask for nothing in return save the brotherhood of their units, and the accomplishment of their mission.

"I was just doing my job, I did the same thing every other Marine would have done, it was just a passion and love for my Marines, the experience put a lot into perspective," said Chontosh.

"It's an honor of course, it is just another day in the Marine Corps," said McCormick. "To me I did what I was suppose to do, I did what was expected," he added.

"I was pretty scared at the time, but we knew what we had to do and we did it," said Kerman. "I did not expect (the award), maybe I just did the right thing."

"It is unreal, it is not what I expected, it is unbelievable," Perez said. "This is real weird for me, because, I am not big on special events," said Perez.

"This award means a lot to me, personally," said Tardif. "But it's not just about me. It's about my platoon and everyone else out there."

posted by Phillip Carter at 15:28

 
The Dark World of American Interrogations

Dana Priest and Joe Stephens have a must-read article in today's Washington Post on the tactics being employed by U.S. military and civilian intelligence officers abroad in the war against terrorism. This article refers to some earlier reporting by The Post in December 2002, which indicated the U.S. was running secret interrogation centers abroad to conduct questioning sessions that might not be kosher under U.S. or international law.

For more on this subject, I highly recommend reading Mark Bowden's "Dark Art of Interrogation" article from the October 2003 issue of the Atlantic Monthly. Also, see Jess Bravin's article in the April 26, 2002 issue of the Wall Street Journal titled "Interrogation School Tells Army Recruits How Grilling Works." I used both articles in my Law & Terrorism seminar to discuss interrogation and how it might relate to the Supreme Court's 5th Amendment jurisprudence, and they both do a good job of describing exactly what goes on behind closed doors.
posted by Phillip Carter at 13:42

 
First court-martial set in the Abu Ghraib mess

Adam Liptak, one of the New York Times' legal writers, has a sidebar in Tuesday's paper describing the special court-martial scheduled to begin in 9 days for Army SPC Jeremy Sivits. The article discusses some of the procedural issues that may arise during the trial, and speculates on the background for the reasons to prosecute this case so quickly.

Both the speed with which the policeman, Specialist Jeremy Sivits, has been brought to trial and the relatively minor sanctions he faces suggest that prosecutors are working their way up the chain of culpability from the bottom. These factors also suggest that Specialist Sivits has entered into a plea agreement in exchange for his testimony at later trials. Six other soldiers are also facing criminal charges in the abuse and humiliation of Iraqi prisoners at Abu Ghraib.

"They've probably got a domino theory of prosecutions," said John D. Hutson, the dean of the Franklin Pierce Law Center and a former judge advocate general of the Navy. "And there may be a race to the courthouse among the potential defendants to see who can get the best deal."

If there is a plea agreement, it is likely that only limited evidence, relevant to the appropriate punishment, will be presented.

"The facts are probably not going to be aired at the first trial," said Michael F. Noone Jr., a law professor at Catholic University and an expert in military justice. "Critics of the administration are going to say there is a cover-up here."

* * *
Mr. Hutson said the nature of the case might account for the pace.

"It's not really a terribly complicated case," he said. "You've got pictures, for God's sake."

Holding the trials in Iraq rather than in the United States is also unremarkable, legal experts said.

"It is not at all unusual to conduct courts-martial in the theater of operations," said Ronald W. Meister, a New York lawyer who served in the Judge Advocate General's Corps in the Navy. Mr. Meister said about 25,000 courts-martial were held in Vietnam.

Holding trials near the scene of the crime also makes it easier to secure evidence and testimony, he added.

Analysis: The first thing to note is that this is a special court martial, not a general court martial. There really isn't an analogous distinction in the civilian world, except perhaps the distinction between a trial in federal district court and a misdemeanor bench trial before a federal magistrate. Basically, special courts martial are limited to certain crimes (generally), and they carry certain maximum punishments that are less than a genearl court martial. The military jury is also smaller (or non-existent) in a special court martial, as opposed to a general one. Otherwise, the procedures are almost identical.

In this case, it appears that the first prosecution out the gate is not the most serious. The pundits quoted in Mr. Liptak's article think that the military prosecutors are using the old organized crime model of prosecution, where you go after the lower-ranking guys first in order to roll them and secure their testimony against the higher-ranking individuals. Perhaps. Although in the military context, you don't need to do this for quite the same reasons. In the military justice system, you have a doctrine known as "command responsibility", which holds superior officers in command positions vicariously liable for the actions of their subordinates in certain circumstances. Once you prove (through conviction) the acts of the subordinates, you establish a prima facie case for the superiors' responsibility. Thus, the testimony of the lower-ranking soldiers is less important than the testimony of a Mafia hitman against his big boss. But we'll see how this prosecutorial strategy unfolds. I think we may be in for a few surprises.

For more on the military justice system, see this primer that I wrote for Findlaw.Com's Writ legal magazine in December 2002. Also, check out the National Institute for Military Justice's website, which has links to everything you could ever want to know on this subject.
posted by Phillip Carter at 13:22

 
President views more photos, videos from Abu Ghraib
Will they be released by the government? Will they be leaked?

The Los Angeles Times reports this morning on the viewing of new photos and videos from Abu Ghraib prison that was staged for President Bush yesterday at the Pentagon. These graphic depictions of U.S. soldiers' conduct are being kept close-hold by DoD officials, ostensibly because of their heinous nature.

Defense officials were weighing whether and how to release the remaining images to members of Congress and the public. Pentagon spokesman Lawrence Di Rita said the photographs, which a senior military official said number more than 1,200, included "inappropriate behavior of a sexual nature." Di Rita did not elaborate.

The president viewed about a dozen images, White House Press Secretary Scott McClellan said, including photographs and still images taken from video footage, most of which have not been made public.

"The president's reaction was one of deep disgust and disbelief that anyone who wears our uniform would engage in such shameful and appalling acts," McClellan said. "It does not represent our United States military, and it does not represent the United States of America."

* * *
A military official who has seen the photos said that one depicts soldiers sodomizing prisoners with chemical lights and another depicts sex between two U.S. soldiers. The official could not confirm a CNN report that said a video exists that shows guards fondling and kissing a female detainee.

"They apparently show some fooling around and some horseplay. There are some that show detainee abuse," the official said. He added that of the more than 1,200 images being reviewed by Pentagon investigators, fewer than 400 are "bad."

It appeared Monday that the Pentagon would make some, but not all, of the images available to some members of Congress, but details were still under discussion.

"We haven't ruled [release] in or out," Di Rita told reporters at the Pentagon.

The Pentagon's inching toward release of the images and the president's show of support for Rumsfeld did not quell congressional clamor over the abuse scandal. The Senate adopted a resolution, 92-0, Monday to condemn "in the strongest possible terms the despicable acts at Abu Ghraib prison," the detention center near Baghdad where the photos involving U.S. personnel that have come to light were taken.

"This body is shocked," Senate Majority Leader Bill Frist (R-Tenn.) said on the Senate floor. "We cannot undo the abuse those Iraqi prisoners suffered but we can, through our actions, show the Iraqi people that the transgressions of a few do not represent America."

Analysis: I can be naive when it comes to Washington power politics and power journalism. But one rule of Washington seems to be quite apt here. The news will come out. This rule applies with particular force to bad news, or news with the potential to do some political damage. It always comes out. And when it does, it always looks worse to have concealed the news than to have released it. Of course, there are legitimate reasons to be squeamish about these images' release. Indeed, they may even be considered obscene if/when published, according to the community standards of decency in some parts of America. (Probably not L.A. though) Nonetheless, I see it as inevitable that these photos and videos will come out somehow, at some point, in the future. Therefore, it behooves the administration to release them now, on its own terms, with appropriate warnings and blurring of faces and body parts. Will it be graphic? Yes. But unfortunately, it's also a big news story, and holding onto this information merely whets the hunger of the American public for it.
posted by Phillip Carter at 13:04

 
Commentary on Blogs: NPR's "The Connection" devoted its show this morning to blogging and a recent article by George Packer in Mother Jones that was somewhat critical of this medium. David Adesnik and Kevin Drum appeared as featured guests on the show, and Kevin even plugged this blog as an example of a blog that gains notoriety because of events in the news. (Thanks Kevin!)

My thoughts? I agree with Kevin and David. I think weblogs are here to stay, and that their variety is what makes them valuable. The navel-gazing "diary" weblogs serve a purpose, and they're good for that. The online op-ed blogs, such as mine, serve a purpose too, and they will stay alive as long as they provide value to the reader. In many ways, the blogosphere is a large marketplace of ideas. In this case, the low barriers to entry may allow for a glut of blogs in relationship to the demand, but that's okay too. We have Google; we have blogrolls; we have other tools to sift through the chaff in order to find the wheat. Eventually, the blogosphere may have to organize itself better. But not yet... it seems to be thriving in a state of semi-organized chaos.
posted by Phillip Carter at 12:47

 
Admin notes: I now have some extra time on my hands before the start of my bar exam study course, so I plan to move Intel Dump to its new server sometime this month. I'm planning to use the Powerblogs software/server that Eugene Volokh has switched to, but if you have a recommendation for something else, please let me know.

Also, I've switched my e-mail address to inteldump -at- yahoo.com. My UCLA e-mail inbox will soon convert to an alumni account with very little storage space, and it won't be able to accomodate the message traffic I get from this site. If you need to reach me, please use this new address. Thanks.
posted by Phillip Carter at 09:50

 
Dissent in the ranks

Tom Ricks reported in Sunday's Washington Post on some extraordinary comments from senior military leaders about the war in Iraq. Most notably, the commanding general of the 82nd Airborne Division said that we were be losing the war on the strategic level. These comments come at a time when many Democratic and Republican politicians are asking whether we should craft an exit strategy for Iraq, and what that plan might look like.

Army Maj. Gen. Charles H. Swannack Jr., the commander of the 82nd Airborne Division, who spent much of the year in western Iraq, said he believes that at the tactical level at which fighting occurs, the U.S. military is still winning. But when asked whether he believes the United States is losing, he said, "I think strategically, we are."

Army Col. Paul Hughes, who last year was the first director of strategic planning for the U.S. occupation authority in Baghdad, said he agrees with that view and noted that a pattern of winning battles while losing a war characterized the U.S. failure in Vietnam. "Unless we ensure that we have coherency in our policy, we will lose strategically," he said in an interview Friday.

"I lost my brother in Vietnam," added Hughes, a veteran Army strategist who is involved in formulating Iraq policy. "I promised myself, when I came on active duty, that I would do everything in my power to prevent that [sort of strategic loss] from happening again. Here I am, 30 years later, thinking we will win every fight and lose the war, because we don't understand the war we're in."

The emergence of sharp differences over U.S. strategy has set off a debate, a year after the United States ostensibly won a war in Iraq, about how to preserve that victory. The core question is how to end a festering insurrection that has stymied some reconstruction efforts, made many Iraqis feel less safe and created uncertainty about who actually will run the country after the scheduled turnover of sovereignty June 30.

Inside and outside the armed forces, experts generally argue that the U.S. military should remain there but should change its approach. Some argue for more troops, others for less, but they generally agree on revising the stated U.S. goals to make them less ambitious. They are worried by evidence that the United States is losing ground with the Iraqi public.

Some officers say the place to begin restructuring U.S. policy is by ousting Defense Secretary Donald H. Rumsfeld, whom they see as responsible for a series of strategic and tactical blunders over the past year. Several of those interviewed said a profound anger is building within the Army at Rumsfeld and those around him.

A senior general at the Pentagon said he believes the United States is already on the road to defeat. "It is doubtful we can go on much longer like this," he said. "The American people may not stand for it -- and they should not."

* * *
The top U.S. commander in the war also said he strongly disagrees with the view that the United States is heading toward defeat in Iraq. "We are not losing, militarily," Army Gen. John Abizaid said in an interview Friday. He said that the U.S. military is winning tactically. But he stopped short of being as positive about the overall trend. Rather, he said, "strategically, I think there are opportunities."

The prisoner abuse scandal and the continuing car bombings and U.S. casualties "create the image of a military that's not being effective in the counterinsurgency," he said. But in reality, "the truth of the matter is . . . there are some good signals out there."

Analysis: First off, it's hard to overstate just how amazing these quotes are. Remember how LTG William Wallace said during the war that "The enemy we're fighting is different from the one we'd war-gamed against"? Remember what a stink that caused? That was only a field commander saying that the plan might need to be tweaked because of calculations about the enemy's strength and will. This is something altogether different. Here we have a field commander, just returned from Iraq, saying that we are losing the war on the strategic level. That's the level managed by the President and Secretary of Defense. Essentially, this two-star general is saying that "we won the war at our level, but the SecDef screwed the pooch." That's huge.

Second, these questions come at a very critical time. The casualty toll from April and the Abu Ghraib prison abuse scandal have made many Americans (and their political leaders) ask a simple question: is it worth it? If we're not winning, or we're not going to win in the long run, one might start wondering whether it's worth it to continue reinforcing failure. Until this prison scandal broke, I believed that we could win in Iraq by leaving a lasting, secure democracy (of sorts) built on the foundation of a market economy and civil society. Now, I'm not so sure. We may have reached the point of diminishing returns, or the point where strategic victory in Iraq is not possible without a deliberate U.S. withdrawal. I'm not ready to make a conclusion on this point yet, but it's something worth considering.
posted by Phillip Carter at 18:15