Wednesday, May 26, 2004
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.
Friday, May 21, 2004
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.
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.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.
Wednesday, May 19, 2004
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.
Tuesday, May 18, 2004
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.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.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.
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.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.
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.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.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.
Sunday, May 16, 2004
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.
Saturday, May 15, 2004
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.
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.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.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.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."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.
Friday, May 14, 2004
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.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.
"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.
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.
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.
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.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.
Thursday, May 13, 2004
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.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.
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.
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.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.
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.More analysis to follow on this subject... stay tuned.
Wednesday, May 12, 2004
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.
Tuesday, May 11, 2004
"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.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.
"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?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.
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.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.
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.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.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.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.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.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.
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.
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.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.
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.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.
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.
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.
Monday, May 10, 2004
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."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.