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Wednesday, December 31, 2003
Happy New Year: Intel Dump will take a holiday until January 5, 2004. Until then, have a safe and happy New Years celebration, wherever you're at.

Tearing down the wall between spooks and cops

Stewart Baker, a Washington attorney who used to be GC for the National Security Agency, has an excellent essay in Slate wherein he argues that we have invested too much in separating law enforcement from intelligence in the name of civil liberties. This "wall of separation" grew up after various agencies abused various groups' privacy during the 1960s and 1970s, and was thought to safeguard citizens from the more invasive forms of surveillance used in the national security world. Unfortuately, the result has been that good intel could not be passed onto law enforcement agencies. And that, in turn, has handcuffed America's cops in dealing with terrorism, with deadly results.
. . . the source of this tragedy was not wicked or uncaring officials. The wall was built by professionals who thought they were acting in the country's and their agency's best interest. They were focused on the hypothetical risk to privacy if foreign intelligence and domestic law enforcement were allowed to mix, and they worried that courts and Congress would punish them for putting aside these theoretical concerns to combat a threat that was both foreign and domestic. They feared that years of successful collaboration would end in disaster if the results of a single collaboration could be painted as a privacy scandal, so they created an ever-higher wall to govern operations at the border between domestic law enforcement and foreign intelligence. As drafted, the rules technically allowed antiterrorism investigators to do their jobs—if the investigators were sufficiently determined and creative. For a while they were, but the FISA court scandal sapped their determination and finally choked off any practical hope of getting the job done.

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

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

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

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

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

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

Israeli war dames

Mark Lewis points to an article in the Washington Times highlighting the designation of an mixed-gender infantry battalion in the Israeli army. Israel is one of a few Western nations to have used women as infantry (as opposed to support troops), and it has often been used as a point of comparison by those who would have women serve in the American infantry. The Israeli army constituted these units out of necessity -- its all-male infantry force structure couldn't stretch to do all of the missions. Mark's got some great comments on the issue, which reflect his experience in the Army's elite Ranger battalions and current engagement with Army personnel policy.
Hoping to relieve units stretched thin by the Palestinian uprising, the army created predominantly female companies three years ago to patrol the border for drug smugglers and the rare terrorist infiltrator. Only men served on the more dangerous Lebanese border and in the Palestinian territories.

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

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

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

Carcal company, whose name is Hebrew for wildcat, has a 2-1 ratio for women to men and requires women to sign on for an extra year of service. The four-month boot camp includes training in urban warfare and 20-mile stretcher marches, a regimen based on other infantry brigades.
Analysis: So far, the experiment seems to be working. The Israeli army has learned to deal with the two major issues facing gender integration of the infantry: physical capabilities, and unit cohesion. Solving the first problem is really a matter of setting mission-based performance standards and ruthlessly enforcing them. (Mark's comments re: Ranger indoctrination are relevant here) It comes down to the will of leaders to kick out women (or men) who don't meet the standard. Solving the second problem is much harder. The presence of both sexes in units adds a huge rock in the rucksack of every NCO and officer. But once again, tough leadership can make it work. If you built a strong, tough, cohesive unit through the crucible of training and shared sacrifice, you can make mixed-gender units work.

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

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

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

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

Tuesday, December 30, 2003
New blueprints for military commissions

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

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

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

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

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

Review panel members are responsible for reviewing military commission proceedings. The review panel may consider written and oral arguments by the defense, the prosecution, and the government of the nation of which the accused is a citizen. If the review panel finds that a material error of law occurred, the review panel will return the case for further proceedings, including dismissal of charges. The review panel may also make recommendations to the secretary of defense with respect to the disposition of the case before it, including sentencing matters. Except as necessary to safeguard protected information, written opinions of the review panel will be published.
Analysis: These changes are big, but critics of the tribunals will probably say they don't go far enough. The lack of a formal review process has been a constant criticism of the tribunals since the original Presidential order was issued in Nov. 2001. However, this new rule doesn't set up an actual right of appeal, such as in the civilian courts. And it doesn't take the obvious course of action, which would've been to set up a right of appeal to the U.S. Court of Appeals for the Armed Forces. Nor does it give tribunal defendants a right of appeal to the U.S. Courts of Appeal or the U.S. Supreme Court. Consequently, I predict that these changes won't do much to assuage the concerns of those who have criticized our policies at Guantanamo Bay, and who have criticized the tribunals.

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

More to follow...

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

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

The St. Louis Post-Dispatch reports today that senior National Guard officers have claimed responsibility for the decision to deploy CH-47 "Chinook" helicopters to Iraq that lacked the most modern flare-dispensing systems available. That decision may be responsible for the missile attack which downed a Chinook last month in Iraq, killing 16 soldiers.
WASHINGTON - The deployment to Iraq of a combined Illinois-Iowa National Guard Chinook unit without required anti-missile defenses did not reflect an oversight or lack of coordination between the Guard and the Army.

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

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

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

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

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

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

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

Monday, December 29, 2003
The men of Charlie Company

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

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

The Washington Post reports this morning that the Army has reinstituted a policy known as "stop loss", whereby soldiers with discharge or retirement plans are kept in the service by force of law. The policy is intended to help the Army keep key people at a critical time, such as those assigned to a unit on the deployment list for Iraq. But when applied, it causes great resentment among soldiers and families, who feel as if the government reneged on its enlistment contract.
Chief Warrant Officer Ronald Eagle, an expert on enemy targeting, served 20 years in the military -- 10 years of active duty in the Air Force, another 10 in the West Virginia National Guard. Then he decided enough was enough. He owned a promising new aircraft-maintenance business, and it needed his attention. His retirement date was set for last February.

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

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

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

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

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

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

By prohibiting soldiers and officers from leaving the service at retirement or the expiration of their contracts, military leaders have breached the Army's manpower limit of 480,000 troops, a ceiling set by Congress. In testimony before the Senate Armed Services Committee last month, Gen. Peter Schoomaker, the Army chief of staff, disclosed that the number of active-duty soldiers has crept over the congressionally authorized maximum by 20,000 and now registered 500,000 as a result of stop-loss orders. Several lawmakers questioned the legality of exceeding the limit by so much.
Analysis: First, a note on these numbers. The Army's "end strength" is capped as a matter of law. Congress authorizes a certain number of soldiers for each service in each year's National Defense Authorization Act. It is illegal for the Pentagon to go over that number, although there are many loopholes. The Army is currently over its end-strength authorization, but that's just half the story. When you include the 155,000+ Army reservists and guardsmen now activated, you get a number closer to 650,000. That's significantly more than the Army's end strength number. Since 9/11, the Army has had tens of thousands of reservists mobilized at any given time. So in reality, the story is much bigger than what the Post is reporting.

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

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

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

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

Sunday, December 28, 2003
Is anthrax still a threat?
Judge halts military vaccination program, while experts say the bug still threaten the civilian population

Thankfully, it's been a while since bacillus anthracis dominated the news. But this week, U.S. District Judge Emmet Sullivan enjoined the American military from inoculating its personnel against anthrax, saying that the President had not signed a special finding necessary to require mandatory inoculations. (Full disclosure: I got the anthrax vaccine in 1998 and I think it's perfectly safe.) The essence of the case was a challenge to the military's mandatory inoculation policy, which was improper given the lack of a full FDA license for the vaccine.
In blocking mandatory anthrax inoculations until a full trial can be held on the matter, U.S. District Judge Emmet G. Sullivan agreed with the contention by six unnamed Defense Department plaintiffs that the anthrax vaccine is an experimental drug "being used for an unapproved purpose" -- namely, for exposure to airborne anthrax as well as exposure through the skin. As such, he ruled, it cannot under federal law be administered to service members on a mandatory basis.

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

Sullivan's ruling comes with more than 800,000 U.S. troops having received the vaccine since 1998. Many of them received the vaccine -- a series of six injections -- last year, before deploying to fight the war in Iraq.
The next day, the Pentagon fired back at Judge Sullivan with a press conference on the safety and necessity of the anthrax vaccine. The Justice Department, on behalf of the Pentagon, has also filed a motion to clarify the judge's ruling on procedural grounds. If successful, the Pentagon could limit the ruling to just the six plaintiffs in the case, because a formal plaintiff class was not certified in accordance with the Federal Rules of Civil Procedure.
. . . at a Pentagon briefing called to rebut Sullivan's findings, William Winkenwerder Jr., assistant secretary of defense for health affairs, took strong exception to Sullivan's finding that troops receiving the anthrax vaccine were being used as "guinea pigs."

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

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

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

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

"These are not scary numbers," he said.
And in Sunday's New York Times, we have an article by Judith Miller, co-author of Germs, on the continuing danger posed by anthrax to the American population. Ms. Miller's reporting on WMD in Iraq has been criticized lately for a variety of reasons, but I've found her writing on biological warfare generally to be quite good. Here's what she has to say:
One indication of concern was a secret cabinet-level "tabletop" exercise conducted last month that simulated the simultaneous release of anthrax in different types of aerosols in several American cities.

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

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

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

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

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

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

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

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

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

Friday, December 26, 2003
Combat or crime?
Which paradigm should apply in the war on terror?

Kenneth Roth, executive director of Human Rights Watch, poses this question and others in an essay which appears in the Jan/Feb 2004 edition of Foreign Affairs. Mr. Roth argues that America has waged a metaphorical war on terrorism without necessarily meeting all of the requirements for such a war, and that we have abused many domestic and international norms of law in the process. Mr. Roth's argument is the latest in a chorus of such arguments from legal scholars such as Laurence Tribe, David Cole, and Kathleen Sullivan. Here's a brief excerpt from the piece:
What are the boundaries of the Bush administration's "war on terrorism?" The recent battles fought against the Afghan and Iraqi governments were classic wars between organized military forces. But President George W. Bush has suggested that his campaign against terrorism goes beyond such conflicts; he said on September 29, 2001, "Our war on terror will be much broader than the battlefields and beachheads of the past. The war will be fought wherever terrorists hide, or run, or plan."

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

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

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

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

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

Within the United States, the third requirement would be nearly impossible to satisfy -- as it should be. Given the ambiguities of terrorism, we should be guided more by Milligan's affirmation of the rule of law than by Quirin's exception to it. Outside the United States, Washington should never resort to war rules away from a traditional battlefield if local authorities can and are willing to arrest and deliver a suspect to an independent tribunal -- regardless of how the tribunal then rules. War rules should be used in such cases only when no law-enforcement system exists (and the other conditions of war are present), not when the rule of law happens to produce inconvenient results. Even if military forces are used to make an arrest in such cases, law-enforcement rules can still apply; only when attempting an arrest is too dangerous should war rules be countenanced.
Analysis: Mr. Roth states his case well, but I disagree with some of the fundamental assumptions and linkages in his argument. I also disagree with his conclusions, including his three-part test for determining if the laws of war apply.

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

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

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

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

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

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

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

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

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

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

- "Second, although the Court in Quirin defined a combatant as anyone operating with hostile intent behind military lines, the case has arguably been superseded by the 1949 Geneva Conventions (ratified by the United States), which, as noted above, rule that people are combatants only if they either are members of an enemy's armed force or are taking active part in hostilities." This misstates both the holding of Quirin with respect to enemy combatants and the definition of the Geneva Convention, found in Art. IV. In Quirin, the Court distinguishes between lawful combatants and unlawful combatants at page 31:
By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals. See Winthrop, Military Law, 2d Ed., pp. 1196-1197, 1219-1221; Instructions for the Government of Armies of the United States in the Field, approved by the President, General Order No. 100, April 24, 1863, sections IV and V.
So Quirin didn't just limit its definition to those who operated with hostile intent behind military lines -- it defined an unlawful enemy combatant as one who did not obey the laws of war. Arguably, a terrorist who deliberately targets non-combatants for a political purpose is violating the laws of war. Also, I think you can analogize Jose Padilla to the German saboteurs in Quirin. Padilla sought to secretly reconnoiter U.S. targets for an Al Qaeda attack using a radiological dispersal device (aka "dirty bomb"). The German saboteurs sought to secretly reconnoiter and destroy various sites on the East Coast. Both disguised themselves as civilians; both sought to target non-combatants; both used their U.S. citizenship and language abilities to blend into the population. It's an imperfect analogy, but a good one in my opinion.

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

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

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

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

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

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

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

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

Time's person of the year: The American Soldier

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

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

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

Saturday, December 20, 2003
Happy Holidays -- Intel Dump will take a break from publishing over the next week to enjoy the holiday season with friends and loved ones. Wherever you're at, I hope you enjoy a happy and healthy holiday season too.

Friday, December 19, 2003
A Constitutional clash of epic proportions
Courts, Congress, President battle over power to designate enemy combatants

Yesterday, the Executive Branch lost two key battles in two key courts in its legal war on terrorism. In the first case, Padilla v. Rumsfeld, the 2nd Circuit Court of Appeals effectively told the Administration that it could not hold Jose Padilla as an "unlawful enemy combatant" -- at that it either must charge him in civilian court or release him. In the second case, Gherebi v. Bush, the 9th Circuit Court of Appeals held that federal courts may exercise jurisdiction over detention challenges from prisoners at Guantanamo Bay. Both are separate issues, but together, the impact of this is to seriously impair the Bush Administration's method of detaining and holding prisoners in the war on terrorism. Today, Jess Bravin has a good roundup of the matter in the Wall Street Journal (subscription required), as does Charles Lane in the Washington Post. Here's an excerpt from the WSJ story:
The administration had been scrambling to soften its policy of holding detainees suspected of terrorism indefinitely while denying contact with lawyers or other ordinary aspects of American due process. In the face of mounting criticism at home and abroad, the Defense Department has given three detainees access to lawyers this month, the latest just Thursday as part of proceeding toward a military trial. The U.S. also has reassured some allies that it won't pursue the death penalty against detainees, and told others that those nations may soon take custody of their citizens being held incommunicado at the U.S. detention center in Guantanamo Bay, Cuba.

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

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

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

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

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

John Yoo, a former Justice Department official who helped design the Bush administration's detention policy and is a law professor at the University of California, Berkeley, said the majority on that panel erred by trying "to turn the clock back to Sept. 10, 2001. They think the best way to handle terrorism is the way we used to, as simple crime."
Analysis: These cases are as big as their billing -- they change the legal environment for the way the administration must deal with suspected terrorists and enemy combatants. Indeed, I now have to alter my syllabus for my Law & Terrorism class, because these cases represent such a fundamental reversal from what had been decided at the U.S. District Court level. In essence, the two appeals courts have sharply curtained two aspects of presidential power here -- the power to designate and detain enemy combatants, and the power to hold them in a place where Art. III courts cannot exercise jurisdiction. There has not been as clear of a challenge to executive authority from the courts since 1952, when the Supreme Court overruled then-President Truman's decision to seize steel mills during the Korean War.

The Administration's response has been somewhat predictable -- to criticize both the Gherebi and Padilla rulings, and to say that it will fight both decisions in court. Towards this end, the Justice Department has asked the 2nd Circuit to stay its opinion. (The 9th Circuit already did stay its opinion in anticipation of the Supreme Court's decision in Al-Odah v. United States.) The Justice Department's statement in the Padilla case reflects its likely legal argument to an en banc panel of the 2nd Circuit, and eventually to the Supreme Court:
In times of war, the President must have the authority to act when an individual associated with our nation’s enemies enters our country to endanger American lives. As U.S. Circuit Judge Richard C. Wesley said in dissent, ‘[T]he President, as Commander in Chief, has inherent authority to thwart acts of belligerency on U.S. soil that would cause harm to U.S. citizens, and, in this case, Congress through the Joint Resolution specifically and directly authorized the President to take the actions herein contested.... Congress could not have intended to limit the President’s authority to only those al Qaeda operatives who actually planned or took part in 9-11.... Clearly, Congress recognized that al Qaeda and those who now do its bidding are a continuing threat to the United States.
Legal Analysis: There are lots of ways for the court to look at this. It appears from the two orders that this is shaping up as a fight over executive power -- and whether the President may:
- Designate American citizens (and non-citizens) as enemy combatants;
- Detain enemy combatants pursuant to the laws of war, without legal process;
- Deny access to counsel to American citizens held as enemy combatants
- Deny the Art. III courts any sort of judicial review over these decisions; and
- Assert these powers on the basis of Public Law 107-40, the post-9/11 act of Congress authorizing force in response to Al Qaeda's attacks.

There really isn't a lot of precedent out there on this issue. Youngstown, a 50-year-old case, is the Supreme Court's best analysis of executive branch power. Most scholars look to Justice Jackson's influential concurrence in this case for the test of whether an executive action is Constitutional, which Justice Jackson stated this way [See 343 U.S. at 636-38]:
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. 2 In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

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

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
So the legal question in this case is whether the President is acting pursuant to a grant of power from Congress (or the Constitutional), in the absence of such authorization, or contrary to an act of Congress. The degree of deference from the Court will depend on the category in which the President's action falls. Obviously, the President contends that he is acting pursuant to P.L. 107-40, and his Art. II authority as Commander-in-Chief, and therefore his actions fall within Justice Jackson's first category. Thus, they deserve deference from the courts. The 2nd Circuit held yesterday that in fact, the President's actions here run afoul of the 1971 Non-Detention Act (codified at 18 U.S.C. 4001), which says that citizens may not be "imprisoned or otherwise detained ... except pursuant to an Act of Congress." Therefore, the President's actions are within Justice Jackson's third category, and thus unconstitutional.

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

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

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

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

Thursday, December 18, 2003
The intel analysts who tracked down Saddam

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

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

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

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

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

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

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

Lt. Santana and Cpl. Engstrom's chart, the contents of which are classified, eventually came to be known in military circles for its accuracy and has even made its way to the commander of the coalition forces, Gen. Ricardo Sanchez in Baghdad.
Analysis: Awesome stuff. Some might say that these soldiers were just doing their jobs, and they don't deserve any special recognition for that. I think that's bunk. At the very least, CPL Engstrom deserves to be recommended for E-5 (Sergeant), and possibly groomed for future MI work as a warrant officer or commissioned officer. 1LT Santana ought to be recognized as well, with an outstanding OER at a minimum. This is first-rate work, and these soldiers deserve to be recognized. It may not be battlefield heroism in the conventional sense that deserves a medal for valor, but some sort of recognition is in order.

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

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

New blog of note: The Decembrist

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

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

The 2nd Circuit Court of Appeals held today that the President lacked the power to designate Jose Padilla as an enemy combatant and hold him indefinitely without access to counsel. The decision is a major reversal for the administration, which had sought to hold Padilla (and future Al Qaeda operatives like him) as something like enemy prisoners of war -- instead of detaining them as defendants in the civilian criminal justice system. (Findlaw.Com has the 2nd Circuit's opinion posted, as well as briefs for Padilla and the government in the case).
Mr. Padilla, a convert to Islam, was arrested last year at O'Hare International Airport near Chicago on his return from Pakistan after extensive travel in the Middle East. Attorney General John Ashcroft drew worldwide attention soon after when he said the government believed that Mr. Padilla, who has a long criminal record as a gang member in Chicago, had been planning to explode a bomb that would use conventional explosives to disperse radioactive particles over a wide area.

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

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

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

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

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

The two judges said Defense Secretary Donald H. Rumsfeld should release Mr. Padilla from military custody within 30 days, after which he could be prosecuted in civilian courts or held as a material witness.
Analysis: I'll have time later today to look at this opinion and offer some thoughts. But procedurally, this is not the last word. The government may (and probably will) petition the 2nd Circuit for an en banc review of the matter, and I imagine they'll get it. The government will probably ask the court to stay this order for the duration of that proceeding, lest irreparable harm be done by giving Padilla access to counsel. The 2nd Circuit will probably accede to that request as well. After the full 2nd Circuit hears the case, both parties will have the right to ask the Supreme Court to hear the matter, and they may well do so. So... the final word remains to be written. More to follow.

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

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

Wednesday, December 17, 2003
Government searches defense attorney's office in Gitmo translator case

The AP reports this morning that Air Force investigators, holding a search warrant from a military judge, searched the offices of an attorney who is representing Airman Ahmad Halabi, charged with misconduct at Guantanamo Bay. The article didn't say exactly what was searched or what was seized, or why the search was executed.
Air Force investigators searched the offices of Halabi's military attorneys Thursday at Vandenberg Air Force Base in California, his civilian attorney, Donald G. Rehkopf Jr., said yesterday. The investigators, who had a military warrant, copied the hard drive of one lawyer's computer, Rehkopf said.

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

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

"This conduct by the government is unprecedented and can only be interpreted as a conscious disregard of the attorney-client relationship," Rehkopf said in a statement. He said Halabi's defense team vigorously protested the incidents to the military judge, Col. Barbara G. Brand.
Analysis: This is pretty odd... I'm not sure what to make of it without more information. Mr. Rehkopf is a widely known and respected member of the military justice bar, and he knows the rules of the game pretty well. I doubt that he would expose himself to criminal charges by having classified material he wasn't supposed to have, but at the same time, he's a good advocate who will push the line for his client when necessary. Nonetheless, this doesn't look good for the government, and it doesn't make the military justice system look all that fair either.

Justice Department establishes policy for enemy combatants' access to counsel

The AP reports that the Justice Department has changed tack on its decision to deny "enemy combatants" the right to an attorney. The change comes in the wake of comments from former-DOJ officials Viet Dinh and Michael Chertoff, who said the current policy of denying access to counsel with no possibility of judicial review was "unsustainable" in court.
Three senior Justice Department officials, briefing reporters on condition of anonymity, outlined the policy for the first time and said it is the proper way to balance national security and constitutional protections for people in government custody as part of the war on terror.

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

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

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

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

"What's needed is a new system of safeguards,'' said Elizabeth Rindskopf Parker, dean of the University of the Pacific law school and former general counsel at the CIA and National Security Agency. "It's not a situation our criminal laws were designed to respond to."
Analysis: Yeah, I think that last point is right. Our criminal justice paradigm is ill-suited for deterring, preventing and responding to terrorism, and that has been made clear by the clash over the "enemy combatant" issue among others. I think the need to detain and interrogate enemy operatives, whether they be battlefield prisoners or clandestine terrorists, is pretty compelling. (For a good articulation of this interest, see this declaration of Cdr. Donald Woolfolk in the Hamdi case.) On the other hand, our Constitution guarantees certain rights to the accused, and it's hard to differentiate between an enemy combatant and a criminal caught on the streets of Chicago.

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

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

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

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