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Thursday, April 29, 2004
Stick a fork in me -- I'm done. With law school that is. Next stop: the dreaded BarBri study course, and the even more hideous California bar exam.

Wednesday, April 28, 2004
The flap over medals and ribbons

I needed a break from studying, so I decided to write over the brewing brouhaha over Sen. John Kerry's medals -- and whether there's any salient difference between medals and ribbons for the purposes of understanding his actions in 1971. The answer -- I think this much ado about nothing. Here's why:

1. What is a ribbon? Quite literally, a "ribbon" is the piece of fabric which suspends a military medal from the fastening device. This depiction of the Silver Star shows what the complete set looks like. Every medal has a ribbon which accompanies it. For the most part, they all conform to the style of the Silver Star, with the notable exception of the Congressional Medal of Honor, which is worn around the neck. The Army's regulation on the subject has this to say:
The term "awards" is an all-inclusive term covering any decoration, medal, badge, ribbon, or appurtenance bestowed on an individual or unit. The term "awards" is used throughout this chapter. The term "ribbon" is an all-inclusive term covering that portion of the suspension ribbon of a service medal or decoration that is worn instead of the service medal or decoration. The ribbon is made in the form of a ribbon bar, 1 3/8 inches long by 3/8 inches wide. The term "ribbon" is used throughout this chapter, and it includes service and training ribbons.
The wearing of ribbons in lieu of medals evolved over time to facilitate the wearing of decorations into combat by soldiers who didn't want their medals to be clanking around on the battlefield. Today, American soldiers do not wear their decorations into battle -- they fight in battle dress uniforms with sewn-on patches for rank, unit, and other designations.

2. What's the difference between a medal and a ribbon? Generally, ribbons are worn in lieu of medals on the military uniform. Medals are usually worn in formal situations, such as black-tie events. On certain uniforms, such as the Army mess dress uniform, miniature medals are actually worn. However, on the standard dress uniform (roughly analogous to a business suit), you will see military personnel wearing their ribbons on a daily basis. Look at any picture of generals testifying before Congress -- they'll be wearing their ribbons. The ribbon itself is a rectangular version of the ribbon that is used to suspend the medal in full medal form (see this chart for a picture of what ribbons look like). Ribbons are worn together in rows, using a ribbon holding device that pins to the uniform. Ribbons are worn in order of precedence, i.e. Medal of Honor, Distinguished Service Cross, Silver Star, etc.

3. Do all medals have ribbons, and do all ribbons have medals? No. Some awards, like the Army's Overseas Service Ribbon, do not have a medal. These are typically less important awards or service awards. Generally, ribbons without medals are so designated in their title, e.g. the difference between National Defense Service Medal vs. Overseas Service Ribbon. All medals do have a ribbon which accompanies them, but all ribbons do not have medals.

4. Are medals unique? The medals that you have actually pinned on you have sentimental value, and some medals (like the Medal of Honor) cannot be purchased. But generally speaking, medals and ribbons are something you can get at the PX or from a military supply store. Ribbons fray over time, and they have to be replaced. Also, some soldiers opt for a "stay brite" version of medals that don't need polishing, and these can only be purchased at the PX. It is correct to say that store-bought medals are "my medals" even though they're not the ones originally given. Once you're awarded a medal, it's yours. Of course, a protest might have more symbolic meaning if it consists of throwing one's own original medals, but given the ease with which replacements are procured, I think this is an unimportant difference.

So, to sum up: Does it matter that John Kerry threw ribbons instead of medals? Not really -- they're functionally interchangeable. Both represent the decoration he received. Does it matter that he threw someone else's decorations, or store-bought decorations? Slightly, although this is mostly a sentimental issue. Original medals are sometimes engraved with the recipient's name, and they have personal value to some people. (I, for one, have little attachment to my original medals, but that's probably because they're peacetime awards.) Do military personnel use the terms "ribbons", "medals", and "awards" interchangeably? Yes -- each word has a specific definition, but I've heard them used interchangeably.

And if you want a humorous version of this -- see this mock PowerPoint briefing on John Kerry's military record over at Slate. Very funny.

Tuesday, April 27, 2004
Finals week: Barring some unbelievably huge news story, Intel Dump will be silent until Thursday when I take my last law school exam. Please come back then.

However, I will be on NPR's Day to Day show today (Tuesday) with Alex Chadwick, discussing my Slate article "Hollow Force" and the effect of the Iraq mission on U.S. military readiness. The segment aired on NPR affiliates today, and also available on NPR's website.

Sunday, April 25, 2004
Enemy combatant? Deborah Sontag has a long biographical piece in Sunday's New York Times on Jose Padilla, the alleged "enemy combatant" whose case will reach the U.S. Supreme Court this week along with that of Yaser Hamdi. Also, for an interesting discussion of the Padilla case and the Constitution's treason clause, see the new weblog "Mere Dicta" by Boalt Hall law student Mike Anderson.

Saturday, April 24, 2004
Notes from the Los Angeles Times Festival of Books

I decided to take a break today from studying for finals to attend the L.A. Times Festival of Books, an annual event held in spring on the UCLA campus that brings together hundreds of authors with thousands of avid book readers like me. I specifically came today for a panel discussion titled "The Seduction of War", which included:
- Leo Braudy, author of From Chivalry to Terrorism : War and the Changing Nature of Masculinity
- Chris Hedges, author of War is a Force That Gives Us Meaning and What Every Person Should Know About War
- James Hillman, author of A Terrible Love of War
- Anthony Swofford, former Marine and author of Jarhead
- Samantha Power (moderator), author of A Problem From Hell (a 2003 Pulitzer Prize winner)
The panel discussed a variety of topics relating to the narratives of war, but focused on why this narrative is so important and interesting to us as readers. Leo Braudy, a humanities professor at USC, emphasized the role of masculinity and rites of passage in his discussing, arguing that we seek out war stories to learn more about this critical stage in life. Chris Hedges spoke quite eloquently on the awesome brutality of war, and its addiction for readers and journalists alike. Mr. Hedges also discussed the role that ideology and "civil religion" plays in the creation of war myths, and how the perpetuation of these myths is an important part of the war narrative. Mr. Hillman discussed the connection between religion and war. And Tony Swofford, the only member of the panel to see war in uniform, talked about the importance of this narrative in a society where few Americans see war personally. Samantha Power acted mostly as moderator, except for a brief introduction discussing the changes in warfare and the war narrative over time, but I imagine that if she could've talked, she would've discussed the human costs of war as felt by the civilians who often die in war.

All in all, I thought it was a brilliant discussion. Mr. Hedges' comments struck me as particularly insightful, if not tinged by the cynicism of witnessing so much brutality as a veteran war correspondent. The panel discussion was taped by CSPAN2, and I think (hope) transcripts and/or achieved video segments will be available of this event.

Post Script: Tony Swofford mentioned a new initiative by the National Endowment for the Arts which will help develop the war narratives of soldiers who saw the action first-hand, and the Washington Post had a report this week on it. The goal is to create a richer fabric of literature and history describing American men and women at war.
The National Endowment for the Arts will announce a program today to change that, to encourage troops returning from Iraq (and Afghanistan as well) to write about their experiences in wartime. "Operation Homecoming," which will be unveiled at a news conference at the Women in Military Service for America Memorial in Arlington, will make some of this country's most prominent authors available to servicemen and -women, for workshops and lectures intended to help them express and record what they have seen and felt in combat. The program is part oral history project, part literary talent search, and part a writing-as-therapy program for troops, particularly those in Iraq, who have been under extraordinary stress in America's first protracted and messy war since Vietnam.

The 16 writers who have agreed to participate by visiting military bases include Tobias Wolff, Tom Clancy, Victor Davis Hanson and McKay Jenkins. In addition, 10 other writers, including Shelby Foote and Richard Wilbur, have contributed reminiscences and readings to a compact disc and Web site the Endowment has produced.

* * *
"These are not voices we would easily hear, otherwise," says Dana Gioia, chairman of the NEA. They haven't been heard for a number of reasons, most important of which is that America's military men and women are preoccupied with fighting. Gioia also notes that one spur to the project is the realization that much of what is being said and recorded about the war is happening through e-mail, a medium that is more ephemeral than the letters and journals that captured the grit of military life in earlier conflicts.

"We want to connect with people when their stories are still fresh," says Jon Parrish Peede, one of the NEA's project directors for "Operation Homecoming." Peede compares the project to the artistic endeavors of the Depression-era Work Projects Administration. The NEA effort is a similar attempt to connect, artistically, with the broader American public during a time of national anxiety.

The goal of the project, beyond providing an emotional and expressive outlet for military personnel and their families, and getting the basic eyewitness facts of history down on paper, is to add to a long tradition of war literature. That tradition encompasses everything from the first great classic of Western literature, Homer's "Iliad," to the vast and ongoing production of new military memoirs, histories and novels that make up a healthy percentage of the American publishing industry.
Very interesting... I have a feeling that this project will produce some amazing writing. I hope that the literature this project produces contributes to the American war narrative, and enriches the minds of millions of Americans.

Another Gitmo case hits a rough spot

Lawyers for Airman Ahmad Halabi have filed pre-trial motions with the military court hearing his case to compel the government to provide more coherent positions to support its case, according to the Washington Post. A team of military and civilian lawyers is representing Airman Halabi, who's charged with various espionage-related counts, including the mishandling of classified information. However, defense lawyers are challenging the basis for these charges.
The complaint came in 40 pages of legal papers filed last week in the court-martial of Airman Ahmad I. Halabi. His attorneys said investigators have repeatedly changed their reasoning about why the translations of letters from detainees to their families that Halabi possessed were considered classified.

"Halabi remains in jail and has been in pre-trial confinement for nine months, and still the government does not have a consolidated, consistent or intelligible position on the classification of information" in the case, Halabi's attorneys wrote. "Each time the defense points out the flaws in the classification logic, a different reason for classification of information is created or invented."
Analysis: This case is different than that of Captain James Yee, the Gitmo chaplain first accused of espionage and then released without any adverse action. But, we can see some common themes. The first is the sloppy designation of classified information at Guantanamo, which may reveal something larger about the information security systems there, or the penchant for oversecurity in connection with the Gitmo mission. Second, we can see a tendency on the part of the government to exaggerate its charges initially, at least in the press, in order to paint a picture of a really bad guy. That's ironic, because prosecutors typically try to downplay expectations so as not to set the bar too high. And third, we have zealous attorneys for the defense, led by civilian attorney Donald Rehkopf, an expert in military law. My gut feeling on this case is starting to change; I think the Air Force prosecution is in for a world of hurt unless it starts to tighten its shot group. No military judge is going to let this prosecutorial conduct stand for long. More to follow...

Update on the Witmer sisters: A couple of weeks ago, we all shared in the grief of the Witmer family, who tragically lost their daughter Michelle to combat in Iraq. The question arose -- can the Witmer sister stay home under current Army policy as surviving siblings? The answer is yes, if they decide to. Yesterday, the New York Times reported that the sisters had requested (and received) 15 additional days to make their decision. I suspect they're torn between loyalty to their family and the intense bonds to the other soldiers in their unit, and that this is a really hard decision to make.

Pledge break: I really appreciate the generosity of all those readers who have given to my site so far. With your help, I have been able to purchase a domain name (, server space (I plan to move after finals), and a laptop to replace the dinosaur I was using that kept crashing at the least opportune times. However, I am also trying to raise money to support my writing and reporting through the summer, while I study for the California bar exam. If you have not donated thus far, and value Intel Dump as a news source, please consider making a small donation. If this site is worth what a daily newspaper is to you, please consider a $1 donation. If it's more like a magazine, then perhaps you can donate $5. If you value this site's analysis and commentary like that of a magazine subscription, please consider a $20 or $25 donation.

Thank you again for your support. I have plans to make this site even more valuable with news feeds, an archive of documents, and a better layout that allows me to include graphics and photos. Please stay tuned for those changes.

Friday, April 23, 2004
Some thoughts on the photos of America's fallen warriors

I should say up front that I'm deeply conflicted over the issue of whether the U.S. government should allow media coverage of returning American caskets, or whether the news media should seek such coverage at all. As many of you know, this issue hit the front pages this week in a big way. First, the Seattle Times printed a front-page photo taken by a contract employee in Kuwait of 20 flag-draped caskets on a cargo aircraft. Then, the Air Force inadvertently released 350 photos from Dover Air Force Base to a private citizen who had made a FOIA request. Now, the Los Angeles Times, New York Times and Washington Post all have major stories on the incident. My hometown paper even chose to run a front-page photo of these flag-draped caskets today, along with this story:
Pictures of flag-draped coffins filling aircraft cargo bays and being unloaded by white-gloved soldiers were obtained by Russ Kick, a 1st Amendment activist in Tucson who won their release by filing a Freedom of Information Act request.

Air Force officials initially denied the request but relented last week and sent him more than 350 pictures of Iraq war dead arriving at the military's largest mortuary at Dover Air Force Base in Delaware.

The unexpected posting of the photos on the Internet caught the Pentagon by surprise and provoked a ripple of media attention to pictures the government had been trying to suppress. Several major newspapers planned to publish the newly released photos on their front pages today.

* * *
The Pentagon's insistence that the images should remain censored also came one day after two military contract employees in Kuwait were fired for taking pictures of flag-draped coffins there and sending one to the Seattle Times, which published it Sunday.

Maytag Aircraft Corp. said that it had fired Tami Silicio, 50, and her husband, David Landry, because they "violated Department of Defense and company policies by working together" to take and publish the photograph, company President William L. Silva said in a news release Thursday.

The picture shows several workers inside a cargo plane parked at Kuwait International Airport securing 20 flag-draped coffins for the trip to Dover. Silicio, who took the picture, told the newspaper that she hoped it would portray the care and devotion with which civilian and military crews treat the remains of fallen troops.

* * *
Government and military leaders acknowledge that such images carry power and can sway public opinion.

In 1999, the then-chairman of the Joint Chiefs of Staff, Army Gen. Henry H. Shelton, said a decision to use military force was based in part on whether it would pass "the Dover test," as the public witnessed the images of the war dead arriving home.

However, at a news briefing Thursday, Molino said the policy was not driven by concerns of public opinion.

"It's a policy that reflects what the families have told us they would like by way of the treatment of remains of the loved ones who have made that sacrifice," Molino said.
My thoughts echo those of Josh Marshall on this subject. Like me, he is conflicted over the publication of these photos, because of the ends to which partisans will use these images: "For many opponents of the war there is an unmistakable interest in getting these photographs before the public in order to weaken support for the war. There's no getting around that." I think this accurately sums up the motivation of many who would like to publish these images. Historically, images of casualties have been exploited by pro- and anti-war movements. While the casualty story is a legitimate part of the discourse over Iraq, I think these images may come to dominate and anesthetize the American public, and in the long run, that might defeat any meaningful discourse over the substantive issues at play. I also think that military families have a right to resent the use of these images, by anyone, because that seems like

However, there's also a part of me that says "Wait a minute -- who do these images really belong to?" Technically speaking, because the photos are taken on Air Force property of Air Force property, they belong to the military. But I learned as a new lieutenant that we (the military) hold the lives of our soldiers and our equipment in sacred trust, and that we are entrusted with these things by the people of the United States. That is especially true of soldiers, who after all, are America's sons and daughters. The images of flag-draped caskets belong to the American public just as their living comrades do. I believe the American public has a stake in seeing these images, because ultimately, it is the American public which produced these young men and women.

On balance, I lean towards letting the images be made public. Why? Because I think that these caskets, draped as they are with American flags and no individually-identifying markings, are important symbols of our national sacrifice in this war. The Pentagon already publishes releases about each servicemember's death, and the major newspapers often run "faces of the fallen" features listing these casualties by name -- often with a photo or short obituary. I don't think these images go much further than those disclosures, except that they show a powerful symbol of the cost of war. In a time when compulsory service does not exist, and many Americans don't feel the personal sacrifice of war, I think it's important to remind the public of the most basic cost of war. These images belong to the American people, just as these soldiers do -- in my opinion, the public deserves to see them.

Has Iraq created a 'hollow force'?

Slate just published my article looking at this issue, and the challenges facing the U.S. military should it decide to reinforce its units currently fighting in Iraq. A variety of logistical and infrastructural obstacles in the path of any reinforcement effort, and they are compounded by budget problems now beginning to seriously affect the Army. The ultimate conclusion? That the war in Iraq has stretched America's military to its limit, and that we have sacrificed our ability to do other things in the world militarily for as long as this mission lasts.
There is some irony in this. Heading into the 2000 election, then-candidate George W. Bush blasted the Clinton administration's 1990s deployments to places like Bosnia and Kosovo, saying they depleted our military's readiness. "Our military is low on parts, pay and morale. If called on by the commander in chief today, two entire divisions of the Army would have to report, 'Not ready for duty, sir,' " said then-Gov. Bush, referring to the readiness of the 10th Mountain and 3rd Infantry divisions after their respective deployments to the Balkans. Today, the same criticism is being leveled at the Bush administration, except that Iraq is having a much worse effect on military readiness than the Balkans deployments ever did.

The administration responds to this criticism by saying that Sept. 11 changed everything and that military force was necessary in Afghanistan and Iraq to respond to the new threat from terrorism. This riposte has merit, but it misses the essence of the new global security environment. Dangerous and unknown threats do exist, therefore the U.S. military must be ready to act on a moment's notice in ways and places that can't fully be predicted. By tying the military down in Iraq to the point where it can barely manage to reinforce itself, the Bush administration has hurt America's ability to respond militarily in the post-Sept. 11 world.

It's too late to back out of Iraq. The real issue today is how to beat the insurgency without eviscerating the American military to do it. If winning the war will take more troops, then we must send them. Reconciling the need to win in Iraq with the need to sustain military readiness will be hard. It probably means we need to increase the size of the active military and adjust the mixture of active and reserve forces to put more "nation-building" troops like military police and civil affairs personnel on active duty. The Pentagon also needs to adjust its 2005 budget, shifting money from futuristic procurement programs to current operations such as reconstituting the pre-po fleets. And America needs to invest more in its reserves so they're ready to back up the active force when the military is stretched like it is today. Ultimately, we must win in Iraq. But we cannot afford to focus so single-mindedly on that mission that we neglect our ability to meet other military threats in the post-Sept. 11 world.

Former NFL player killed in Afghanistan
"He proudly walked away from a career in football to a greater calling, which was to protect and defend our country. Pat represents those who have and will make the ultimate sacrifice for our freedom. I am overwhelmed with a sense of sorrow, but I also feel a tremendous feeling of pride for him and his service." - Arizona Cardinals coach Dave McGinnis

* * *
He had been playing under a three year, $3.6 million contract. The Army reportedly paid him about $19,000 plus benefits.
The Washington Post reports that Army SPC Patrick D. Tillman -- formerly a player with the Arizona Cardinals, now a member of the Army's 75th Ranger Regiment -- was killed in action while hunting down Al Qaeda leaders in Afghanistan. The Rangers were engaged in Operation Mountain Storm, which kicked off last month and has thus far involved thousands of American soldiers in the hunt for Osama Bin Laden and his top henchmen. Details are not being released yet about the circumstances of SPC Tillman's death. But we already know the larger circumstances of his service. He was a man who walked away from an amazing career in professional sports to pursue a higher calling of service to his nation. In volunteering for the Rangers, he chose to join one of the most elite military units in the world, and to push himself farther and harder in the service of his nation. The news of this death is tragic, as is the news of any soldier's death. But we should honor these choices, and hope that others follow in the altruistic footsteps of SPC Tillman.

Update: The Los Angeles Times has good coverage of this story in Saturday's paper, including an excellent essay from sports columnist Bill Plaschke titled "The True Meaning of Sacrifice". With the NFL draft looming over this weekend, Plaschke writes:
Today in New York, amid the smell of money and the tingle of fame, the NFL will hold its annual draft of young men who will use their extraordinary physical gifts to play a game.

One can hardly imagine any of them forsaking their futures and using those gifts on behalf of their country.

Yet that was Pat Tillman, former safety for the Arizona Cardinals, dead in Afghanistan at 27, alive forever in our vision of what is best about America.

For Tillman, the important interceptions weren't made on a football field, but the front lines.

For Tillman, the real tackles weren't the ones made to inspire your team, but to secure our neighborhoods.

For Tillman, the only guaranteed contract was one you sign with your flag.

This weekend, athletes everywhere will stand at attention, apparently listening, as the national anthem is played at sporting events.

Remember Pat Tillman as the one of the few in the last 50 years who actually listened.
Plaschke ends his column with a call to immediately induct Tillman into the NFL Pro Football Hall of Fame. I confess ignorance as to the rules of that institution, however, I can't think of a better tribute.

Admin note: Intel Dump will slow down over the next week to allow me to study for my last law school finals. I'll try to post notes on big stories I'm tracking (the 4th Circuit decision in U.S. v. Moussaoui, the release of photos depicting the coffins of dead American soldiers; the death of Army Ranger and NFL player Pat Tillman in Afghanistan, and others). But finals will have my primary attention until next Thursday.

Thursday, April 22, 2004
Welcome home, Ironhorse: The 4th Infantry Division officially came home today to Fort Hood, Texas, with a formal ceremony honoring the division's soldiers. The division also honored the 79 4ID soldiers who gave their lives in Iraq. During its service in Iraq, 4ID had responsibility for a large swath of territory north of Baghdad, including the notorious "Sunni Triangle". Its soldiers conducted thousands of patrols, raids and convoys in support of the security and reconstruction efforts. The 1st "Raider" Brigade (my old unit) also earned notoriety for the raid which captured Saddam Hussein in December 2003.

The 4th Infantry Division's soldiers will now get some much-needed rest and time to reconstitute their units; many will rotate to other installations, and many will leave the Army altogether. The current state of affairs in Iraq makes it look like 4ID will be sent into the breach once again, but hopefully not too soon for the soldiers and their families.

Good news for extended troops

Balancing the dual imperatives of mission accomplishment and soldier welfare is never easy. However, a report in Stars & Stripes today indicates that the Army's top general in Europe may have drawn a bead on exactly how to do this for the families of the soldiers whose tours have been extended by 3-4 months in Iraq.
“We will cut through the red tape, we will modify the regulations, we will change policies — all as necessary to support you during the upcoming months,” Gen. B.B. Bell said in a written statement.

Bell’s tour comes in the wake of the extension to 1st Armored Division’s hitch in Iraq, which had been slated to end next month.

“In the very near term, I will lead a team of our most experienced support personnel to many of your communities to hear from you personally,” Bell said in his statement, promising, “we will not let you down.”

Citing security concerns, USAREUR spokesman Michael Tolzmann refused to say which U.S. military installations in Germany Bell would visit or when the general would be making his appearances.

Asked for possible examples of the kind of red tape-cutting Bell is anticipating, Tolzmann said such rule-bending “would include ... implementing changes to operating hours at [Child Development Centers] or other post facilities as a result of soldiers being deployed and families showing a need for change.”

Whatever is needed, Bell said, he and his staff will make sure it gets done.

“I have directly committed the entire United States Army Europe team to your help and assistance during this period of extended service for your soldiers,” Bell said.
This is the kind of good news story that I like to see. Extending the guys in Iraq was a hard thing to do, but probably the right thing to do. I'm glad that some smart officers had a plan ready to help families cope with the extended separation. Hopefully this makes a difference for these people. And who knows? Doing right by these families may pay big dividends down the road in terms of reenlistment and soldier performance. If you take care of the family, the family will take care of the soldier. And as a storied general said many years ago, soldiers aren't in the Army -- soldiers are the Army.

Comparing the junior officer evals of Bush and Kerry

At the risk of being labeled a partisan hack, I decided to compare the evaluation reports from the military records of President George Bush and Sen. John Kerry. Bottom line up front: I found significant differences between the character of the two sets of documents. I feel somewhat qualified to judge these reports, having been a junior military officer subject to similar evaluation schemes. While it's true that these senior officer observations are more than 30 years old, I believe they reveal important details of these men's character, at a time when these men were asked to lead by example and perform our nation's most sacred duty. Therefore, I think it's relevant to today's debate, and I am glad to see the Kerry campaign releasing these records for comparison to those of the president.

The New York Times reports this morning on the contents of Sen. Kerry's military records, which his campaign has put online. The general theme of these records is that young Sen. Kerry was an outstanding officer, even taking into account the glowing language that's typical of officer evaluation reports. Here is are a couple of illustrative excerpts from his fitness reports:

From his evaluation as an Ensign on the USS Gridley:
"A top notch officer in every measurable trait. Intelligent, mature and rich in educational background and experience, ENS KERRY is one of the finest young officers I have ever met and without question one of the most promising. ... He is an alert and active original thinker with great potential to the Navy. He eagerly accepts and actively seeks out tasks of greater responsibility. He is recommended for accelerated promotion."
Comment: There are a couple of things that leap out from this text. First, ENS Kerry was a good officer, and that's clear from this language which goes beyond the praise used in all such reports. Second, he chafed a little bit at the Navy bureaucracy and culture. The comment about his educational background indicates that he was different than his peers. The comment about being an "active original thinker" who "eagerly... seeks out tasks" indicates that he took a lot of initiative, and probably did some edgy things as a young officer. I think that's the mark of a good junior officer, because you're supposed to take risks on behalf of your troops at that age. And a final note about Ensign Kerry's pedigree. Officers in the military generally don't have his background, then or now. It says something that he wasn't ostracized or singled out as effete or aristocratic because of his upscale background. These reports show that for the most part, he was one of the guys.

From a second FITREP on the USS Gridley:
"His enthusiasm for the navy and his work is contagious, and his men are ardent supporters of him. His division's morale is one of the best on the ship due to his dynamic leadership. He is a polished diplomat at ease in distinguished company and shows great promise for future assignment as an aide or on a foreign diplomatic post."
Comment: Again, we see the indication that he's somehow different than his peers -- more educated, more refined, more diplomatic. The Navy has always been the most genteel service, and it has always had a mini-diplomatic corps within its ranks, so it's not surprising to see those lines on this FITREP. However, the first part of this comment is striking. There are lots of things you can praise about an officer -- technical competence, physical ability, tactical genius, intelligence, etc. To praise his leadership, and to cite his troops' morale in support of that praise, is one of the greatest compliments you can give an officer.

From two FITREPs for LTJG Kerry while assigned to Coastal Division Eleven:
"In a combat environment often requiring independent, decisive action LTJG Kerry was unsurpassed. ... LTJG Kerry emerges as the acknowledged leader in his peer group."

* * *
"LTJG KERRY was assigned to this division for only a short time but during that time exhibited all of the traits desired of an officer in a combat environment. He frequently exhibited a high sense of imagination and judgement (sic) in planning operations against the enemy in the Mekong Delta. ..."
Comment: There is more in here about his specific combat exploits, but these two quotes bookend those comments and make the most general observations about LTJG Kerry's character. Again, we see an indication of his leadership ability, which his commanders felt was far above average in comparison to his peers. We also see comment on his performance in combat, which is qualitatively different than performance in peacetime or on a ship that doesn't see direct-fire combat. And again, we get the sense that he chafed against his bosses, based on the comment about "imagination".

From a FITREP for services as an aide to an admiral:
"LTJG Kerry is one of the finest young officers with whom I have served in a long naval career. His combat record prior to becoming my personal aide speaks for itself and is testimony to his competence and courage at sea. As my personal aide he could not have been more effective. ... This young man is detached at his own request to run for high public office to whit the Congress of the United States. The detachment of this officer will be a definite loss to the service. He is the dedicated type that we should retain and it is hoped that he will be of further perhaps earlier greater service to his country, which is his aim in life at this time."
Comment: You an expect a certain amount of praise from an admiral for his aide, but again, such praise would normally be for things like his efficacy, efficiency, and so forth. This is high praise indeed for an officer on his way out the door, and it says a lot that a senior naval officer would be so effusive. Sen. Kerry appears to be the type of young officer the military desperately needed to retain after Vietnam.

In contrast, President Bush's released military record (see this site, and the Boston Globe's site too.) does not contain the detailed evaluation reports found on Sen. Kerry's website. (I looked on the president's campaign website but could not find a more complete repository of military records.) I think this is due to poor recordkeeping by the TX Air National Guard, as well as a desire to not release these documents. In addition, then-LT Bush was a pilot, not a leader of airmen, so his evaluation reports are likely to be more sparse anyway. Nonetheless, I think Pres. Bush's records deserve to be compared side-by-side to those of young Sen. Kerry. The Washington Post provides these excerpts from Pres. Bush's evaluations:
A 1971 evaluation described Bush as "an exceptionally fine young officer" with "sound judgment" who "is mature beyond his age and experience level." Bush "is a natural leader but he is also a good follower of military discipline," it said. A 1970 letter recommending him for a promotion from second to first lieutenant called him "a dynamic outstanding young officer" who "clearly stands out as a top notch fighter interceptor pilot." Bush, it said, "is a tenacious competitor and an aggressive pilot."
Comment: Like Sen. Kerry's evaluation reports, this one is actually pretty good. It's doesn't contain the same detail or concrete indicators of performance. But I think much of that owes to the difference in their types of service. Pres. Bush was only being evaluated for one weekend a month and two weeks in the summer -- there just wasn't that much to observe. Moreover, Pres. Bush's assignment was to fly and perform limited additional duties, not to lead sailors in a division or swift boat unit. Thus, there were no unit actions for him to be accountable for. (Military leaders are always evaluted on the accomplishments -- good or bad -- of the troops they lead.)

An article at FreeRepublic.Com also provides an excerpt from a press release touting Pres. Bush's flying ability:
The younger Bush fulfilled two years of active duty and completed pilot training in June 1970. During that time and in the two years that followed, Bush flew the F-102, an interceptor jet equipped with heat-seeking missiles that could shoot down enemy planes. His commanding officers and peers regarded Bush as a competent pilot and enthusiastic Guard member. In March 1970, the Texas Air National Guard issued a press release trumpeting his performance: "Lt. Bush recently became the first Houston pilot to be trained by the 147th [Fighter Group] and to solo in the F-102... Lt. Bush said his father was just as excited and enthusiastic about his solo flight as he was." In Bush's evaluation for the period May 1, 1971 through April 30, 1972, then-Colonel Bobby Hodges, his commanding officer, stated, "I have personally observed his participation, and without exception, his performance has been noteworthy."
Comment: This praise is a little fainter, although it's still there. Of course, press releases have little value as evaluative documents, but it does say something that the TX Air National Guard would choose to showcase this officer instead of his peers.

Analysis: In summary, the evaluations of John Kerry clearly stand over those of George Bush. However, I think much of the disparity owes to the difference between the two men's military service. Had Pres. Bush served more time on active duty, or in combat, we would have a more complete record on which to judge his service as a junior military officer. A lot of people don't think this service matters, but I do. It reveals important details of these individual's character at an important moment in their lives. And as I wrote in the Chicago Tribune, it matters for other reasons too:
President Bush's 30-year-old service record from the Air National Guard is relevant because it shows us something about his willingness to share the same hardships as the soldiers he now commands today from the White House. The issue has never been whether he was guilty of desertion or being AWOL--two slanderous charges leveled without regard for the facts. The real issue has always been the character of his service, and whether it was good enough to set the example for America's 1.4 million citizens in uniform.

* * *
... these issues boil down to the president's willingness and ability to set the example for the military he now leads as commander in chief. Cumulatively, questions about then-Lt. Bush's drill attendance, evaluation reports, flight status and early discharge add up to questions about the character of his service in the National Guard. Bush did receive an honorable discharge, but such a document is the lowest common denominator of military performance--it takes a lot of bad behavior to earn anything other than an honorable discharge. The American public deserves to know the full truth about the president's military record. It's relevant to his character, and it's relevant to whether he's fit to lead today's military by example.
The great thing about our system is that it lets you be the judge of these men when you vote in November. Every American will come to his or her own conclusion on this issue, and will decide which man is better fit to serve as America's commander-in-chief. For what it's worth, I still haven't made up my mind, and probably won't before November.

Update: Kevin Drum points us towards one key difference in the military records of each man, with respect to their desire for service overseas. (Nice job on the Photoshop and web design, too, by the way.)

For what it's worth, I think this reveals something quite striking about the sense of noblesse oblige within each man upon their graduation from Yale and entry into a life of privilege. Ironically, I see great parallels between the choice of young John Kerry and the choice of young George Herbert Walker Bush (aka Bush 41, the current president's father). Both men, with an eye on their future, made a choice to seek dangerous duty overseas in the service of their nation. I wish that more of America's elite graduating today would follow in these men's footsteps by serving their country in uniform, or in other ways such as the Foreign Service and Peace Corps. Service to country is a fundamental duty of citizenship, and it is one that I respect regardless of political affiliation.

Wednesday, April 21, 2004
Who pays the cost of chaos in Iraq? - Part II

The New York Times brings us a report in tomorrow's paper that essentially corroborates reporting earlier this week by the Washington Post about the effect of violence in Iraq on reconstruction. In a nutshell, the deteriorating security situation is causing private contractors to stop their work -- whether it's drilling wells, running convoys, building schools, or delivering supplies. The latest casualties of war, according to the Times, are General Electric and Siemens.
The insurgency in Iraq has driven two major contractors, General Electric and Siemens, to suspend most of their operations there, raising new doubts about the American-led effort to rebuild the country as hostilities continue.

Spokesmen for the contractors declined to discuss their operations in Iraq, citing security concerns, but the shutdowns were confirmed by officials at the Iraqi Ministry of Electricity, the Coalition Provisional Authority and other companies working directly with G.E. and Siemens in Iraq.

"Between the G.E. lockdown and the inability to get materials moved up the major supply routes, about everything is being affected in one way or another," said Jim Hicks, a senior adviser for electricity at the provisional authority.

* * *
The Coalition Provisional Authority regards the rehabilitation of the Iraq's water, sewage, transportation, oil and electrical infrastructure as a linchpin in the effort to create a functioning democracy and convince Iraqis of America's good will.

A spokeswoman for the authority said discussions involving security issues with General Electric had led to an agreement that could result in a resumption of operations. The spokeswoman said Siemens and the authority were "working out their differences," but she said she had no information about whether the company would resume work.

* * *
Two companies with much larger contracts in Iraq, Bechtel and Halliburton, said they had curtailed travel by their employees but were not considering halting their work or pulling out of the country.

* * *
A major private security provider in Iraq with access to intelligence information said that Halliburton had "been slowed down in terms of the number of routes and convoys they can run" and said the firm was having a difficult time hiring truck drivers to work in Iraq. He estimated that the overall number of Halliburton convoys was down by 35 percent.
Analysis: Once again, the takeaway point is this: increased violence by the insurgents has a direct and inexorable effect on reconstruction, particularly when reconstruction is done mostly by unarmed (and lightly secured) contractors whose concern for their own welfare outweighs any altruistic desire to rebuild Iraq (and rightly so -- these aren't suicide contracts). The U.S. must set the conditions for reconstruction by securing the nation of Iraq. The only viable way to do that is with well-calibrated force -- sometimes a velvet glove; sometimes an iron fist. No meaningful reconstruction will take place until the security situation is fixed. And it should go without saying that the transfer of sovereignty on 30 June will be a very precarious thing indeed if security is not restored before then.

One note on contractors in Iraq. They really break down into three categories. The first and largest category are the reconstruction contractors -- the folks like Halliburton and GE and others who have been called in to do the heavy logistics work of rebuilding Iraq. These contractors are generally no different than logistics or engineering firms in the states, except that they're working overseas. Generally, these contractors are unarmed. The second main category includes the armed private military contractors like those from Blackwater Consulting, whose missions range from personal protective details to security for reconstruction sites to more clandestine activities. And the third category, which is really hard to measure, includes host-nation contractors. U.S. contracting officers on the ground in Iraq have contracted for a long list of services from basic labor to truck driving from Iraqi citizens; American contractors have also subcontracted a number of functions to Iraqis. The challenges and issues are different for each type of contractors.

This story applies most to the first category -- the large contingents of unarmed logistical and engineering professionals in Iraq to rebuild infrastructure and other areas. They are particularly vulnerable because they carry no organic security and no organic weapons, unlike soldiers. And I'm not surprised one bit to see their work affected so severely by the violence in Iraq.

More military overstretch problems surface
Do looming reserve personnel problems mean we should bring back the draft?

A pair of articles in the Baltimore Sun and Dallas Morning News makes an old point with new evidence: that the war in Iraq has stretched the American military to a point it hasn't seen for at least a generation. The issue presented by both article is the extent to which America's military reserves have been tapped for Operation Iraqi Freedom, and the long-term effects of this operation on the reserves' retention of personnel. To date, the reserves (and active force) have done okay at retention, largely thanks to "stop loss" policies and generous reenlistment bonuses. However, that may be about to change, according to the Sun:
With the Reserves and the National Guard filling an ever-busier role in military forces already stretched to the limit, re-enlistment decisions have become a worrisome issue for the Pentagon, especially because the 90-day waiting period has begun expiring for many citizen soldiers who were part of the first lengthy deployments to Iraq.

"This is going to be a real crunch time," said Al Schilf, a spokesman for the Army Reserve. "This is the longest that Reserve soldiers have been deployed, and we have to be realistic. We have torn them away from their employers and their families for a year, so the next few months are going to be very telling."

Even before now, the Army Reserve was falling short of re-enlistment goals. For the past 18 months, ending March 31, re-enlistment ran about 7 percent behind the Army's stated goal - 1,507 soldiers fewer than the target of 21,243.

Recruiting efforts have helped compensate for some of the shortfall. In signing up new soldiers, the Army Reserve has exceeded its goal for every year since 2000, although the goals have been steadily decreasing - from a target of 41,961 recruits in 2000 to only 21,000 for the current year.

For the National Guard - the other force of "part-time soldiers" pressed into full-time deployments - the opposite trends are in play. Re-enlistment is up, but recruiting is slumping.
Analysis: If there is to be a personnel exodus from the reserves, it will not appear in one giant surge at one moment in time. That's because each soldier's enlistment ends at a different time, and the choices to leave the service will be made on an individual basis by these soldiers when their time is up. Many will likely stay, because they want the benefits or they have high morale from doing a good job in Iraq. But the trends point to a growing number of soldiers who decline reenlistment. We may now be able to finally see this indicator truthfully, because of the end of the 90-day "stop loss" waiting period. During deployment and for 90 days after their return, these soldiers were barred from getting out -- even if their enlistments were up. Now that this period has been lifted, we will see soldiers making their own decision on this subject, without the constraint of an Army-wide policy.

For what it's worth, I think the reserves can weather this crisis. Although 360,000 reservists have been called up since 9/11 for service at home and abroad, the numbers so far indicate that the majority of these reservists will stay in uniform. There are certainly crises in some units and some specialties. It probably wouldn't hurt to shift some units (e.g. Civil Affairs, MP, logistics) to the active force, and it wouldn't hurt to convert more old guard forces to those areas to create a reserve expeditionary nation-building capability. The reserves also stand to benefit a great deal from active-duty personnel problems, because many of the active soldiers who get out will join the reserves, bringing their expertise and experience with them.

However, the reserves will take some time to rebuild themselves after Iraq. One strategic cost of the war can be expressed in terms of an opportunity cost. By taking on this mission, we have sacrificed the readiness of our reserves to respond to a crisis at home or abroad for a period of time -- the deployment, plus the time necessary to rebuild and reconstitute. That may be three years, or five years, or even longer -- it's not clear. Of course, you have benefits too, like the amount of combat experience in today's active and reserve force. However, the reserves will not be ready for war for a while, and that creates a strategic risk for the United States over the next few years.

Some political leaders, including Sen. Chuck Hagel (R-NE) and Sen. Joe Biden (D-DE), are expressing doubts about the military's ability to weather this storm. And to fix the problem, they are saying that we should consider the option of a national draft, both to fill the force and to spread the burden of military service more equitably. I don't think the first reason is necessarily true; I think the military can fill its force structure with (re)enlistment incentives and other means. There are also tremendous startup costs associated with a conscription system, not to mention its quality or professionalism issues.

However, the second reason proferred by Sen. Hagel and Sen. Biden deserves some mention. Ours is a volunteer force, but not all Americans volunteer in equal numbers. It is certainly true, as military sociologist Charles Moskos has noted, that today's military reflects the nation's working class and middle class more than any other. I think America's elites ought to do more than they're doing -- paying a disproportionate share of income taxes does not relieve the upper class of its other duties to the nation. Despite the obvious appeal of a conscription system for this purpose, I still oppose it. Our experience in Vietnam showed us how the wealthy will manipulate a conscription system to avoid service with draft deferments and other means; there's no reason to think they won't do the same thing this time. The rich and powerful will always have means to avoid service.

I think it would be better to avoid the Draconian option of a draft, and instead to pursue other incentive systems that will encourage military service by elites. Towards this end, I would invest millions in ROTC scholarships, targeted at elite colleges and universities. (Today's ROTC scholarships often "cap out", making them less valuable for students enrolled at expensive private schools.) I would also develop enlistment and officer-service options that appeal to college students, such as reserve options to serve during the summers and short-term enlistments. Will these things bring in more elites? Probably, though not in massive numbers. But I think that's okay, because even a slightly higher level of elite participation in the military will have a big marginal effect on the discourse among elites about military service and American national security policy.

Update I: The AP reports on Friday that the Army has met its reenlistment target for the first half of FY2004. I think this is largely the result of strong reenlistment incentives, and initiatives at the unit level to get soldiers to re-up. But it counsels against the initiation of a draft.

Tuesday, April 20, 2004
Oral argument in the Gitmo case: Slate's Dahlia Lithwick has a roundup of what happened today in the consolidated cases of Al-Odah v. United States and Rasul v. Bush -- collectively, the Guantanamo Bay jurisdiction cases. From her dispatch, available both in Slate and on NPR, it appears that the court fumbled around on the issue without either side scoring significant points. My guess is that we'll get a muddled decision based largely on jurisdictional grounds, and nothing earth shattering. The monumental decision will likely be handed down in next week's cases -- Hamdi and Padilla -- involving U.S. citizens designated as enemy combatants.

For more on oral argument, see Jess Bravin's report on the argument in the Wall Street Journal (subscription required), Linda Greenhouse's coverage in the New York Times, Charles Lane's story in the Washington Post, and David Savage's article in tomorrow's LA Times.

The consensus of these five reports is that the justices appear skeptical of the Bush Administration's all-or-nothing stance in the Guantanamo case. So far, the administration has maintained that there ought to be no right of habeas corpus -- and by extension, no role for the courts -- in the case of the Guantanamo detainees. There is good law to support this position, but it raises eyebrows among a lot of legal scholars and political leaders at home and abroad. We'll see where the Court goes with this one.

Iraqis establish tribunal for Saddam: The AP reports that the Iraqi Governing Council has set up an entity to try former dictator Saddam Hussein and his top lieutenants according to Iraqi law and a statute passed late last year. So far, it looks like this tribunal will focus on the crimes committed by Hussein against his own people, rather than those against the Kuwaitis or Iranians, which is basically what I predicted last year. It will be very interesting to see how this tribunal unfolds. I also think there will be a very complex and interesting interaction between this trial and the security situation on the ground in Iraq. More to follow...

Special Forces general to speak on counterinsurgency at UCLA: If you're in Los Angeles and have some time tomorrow, you may want to attend a lecture by U.S. Army Major General Geoffrey Lambert at UCLA's Anderson School at 3:30 p.m. MG Lambert commands the U.S. Army John F. Kennedy Special Warfare Center and School, and he will speak on "a new and fundamentally different approach to planning modern warfare--a paradigm shift that not only provides more options for the U.S. military, but also results in wars being designed backwards to forwards where humanitarian relief and compassion are critical to success." It sounds like it will be an amazing lecture from one of the Army's leading warrior-intellectuals.

Oregon Guardsman combat story disputed

CPL Dana Beaudine, the Oregon National Guardsman who claimed he was mistreated by his employer after returning from combat in Iraq, apparently lied to the Seattle Times about the story. After running the story, The Times received a flurry of e-mails from officers and NCOs in the soldier's unit, effectively quashing his entire story. The Army even cancelled his Purple Heart recommendation, after finding that his wounds were not the result of hostile action. Suffice to say, I've got a bad taste in my mouth for staking some of my personal credibility on this guy's story. (Thanks to Mudville for passing this story along.)
In fact, no one from his unit contacted by The Times could corroborate Beaudine's story.

"You have been fooled," Command Sgt. Maj. Gerald Schleining Jr. wrote in an e-mail to The Times from Kuwait after the story was published. "Beaudine was never injured in armed conflict. He has never been to Basrah or Iraq for that matter."

Capt. John Robinson, who said he was Beaudine's commander in C Company of the 1st Battalion, 162nd Infantry Regiment, also disputed Beaudine's account.

"This is a disgrace to all those who have legitimately received injuries or died in the combat actions since the first day of the war," Robinson said.

Beaudine, who was honorably discharged in February, insists his story is true.
Analysis: I don't think this necessarily changes the legal analysis of what happened in this case. CPL Beaudine was mobilized and put on active duty. He came back under somewhat nefarious circumstances, and subsequently claimed mistreatment at the hands of his employer. He filed a complaint with the Labor Department, and that agency's investigators found misconduct by his employer. And he may have a legally cognizable claim in federal court if his employer decides not to settle. So, this is still a case of bad corporate behavior under the USERRA; the victim just isn't as honorable of a person as originally reported. Still, a correction to the record is in order, and I regret taking such a hard stand on this guy's behalf in light of his apparent fabrications.

President Bush promotes the Patriot Act's renewal

President Bush has launched a public campaign to press the public -- and by extension, Congress -- to renew key provisions of the USA PATRIOT Act (P.L. 107-56) which are set to expire at the end of 2005. The AP reports that he spoke yesterday in Pennsylvania, and that he will speak today in Buffalo, New York, on the subject. The choice of Buffalo is no accident -- it was where the "Lackawanna Six" were prosecuted for providing material support to terrorism (all six pled guilty). Here's what the President's been saying on the road:
After September the 11th, we took another vital step to fight terror, and that's what I want to talk about today. I want to talk about the Patriot Act. It's a law that I signed into law. It's a law that was overwhelmingly passed in the House and the Senate. It's a law that is making America safer. It's an important piece of legislation.

First, before September the 11th, law enforcement, intelligence, and national security officials were prevented by legal and bureaucratic restrictions from sharing critical information with each other, and with state and local police departments.

We had -- one group of the FBI knows something, but they couldn't talk to the other group in the FBI -- because of law and bureaucratic interpretation. You cannot fight the war on terror unless all bodies of your government at the federal, state, and local level are capable of sharing intelligence on a real-time basis. We could not get a complete picture of terrorist threats, therefore. People had -- different people had a piece of the puzzle, but because of law, they couldn't get all the pieces in the same place. And so we removed those barriers, removed the walls. You hear the talk about the walls that separate certain aspects of government; they have been removed by the Patriot Act. And now, law enforcement and intelligence communities are working together to share information to better prevent an attack on America.

* * *
The reason I bring it up is because many of the Patriot Act's anti-terrorism tools are set to expire next year, including key provisions that allow our intelligence and law enforcement agencies to share information. In other words, Congress passed it and said, well, maybe the war on terror won't go on very long, and, therefore, these tools are set to expire. The problem is, the war on terror continues. And yet some senators and congressmen not only want to let the provisions expire, but they want to roll back some of the act's permanent features. And it doesn't make any sense. We can't return to the days of false hope. The terrorists declared war on the United States of America. And the Congress must give law enforcement all the tools necessary to protect the American people. (Applause.)
Analysis: There's actually a lot of interesting stuff in the President's speech that I recommend to anyone interested in understanding the policy debate over the Patriot Act. The President references roving wiretap power, administrative subpoena power, sentencing guidelines, and other technical areas usually reserved for lawyers and law review articles. His ultimate point is that these powers are vital for the Justice Department, and that without them, the American law enforcement community cannot effectively fight terrorism. Perhaps... although I think the the administration will have to sacrifice some of these powers if it wants to get the bulk of the Act renewed when its sunset provision kicks in.

My prediction is that the administration will sacrifice some of the Act's provisions, such as the notorious "library record" Sec. 215, in order to get the more important parts of the Act renewed. They'll do this in order to seize the moral high ground and show that they're willing to be reasonable on this stuff. The irony, of course, is that this most notorious provision has never been used, thanks to other procedures which allow DOJ to get the same records without going through the onerous FISA/Sec. 215 process.

Second, I think the Administration will play serious political hardball when it comes time to push this legislation through Congress. We got a taste of this when the Administration fought for the Homeland Security Act of 2002. In essence, "anyone who's not with us is against us" where these legislative items are concerned. The Administration will procure a long list of prosecutors, police officers, and others to testify about the need for such powers -- it's easy to find law enforcers on both sides of the aisle who support these measures. And they will paint anyone opposed to the Act's renewal as a tacit supporter of terrorism. That's going to be very ugly, but it's going to be what happens. And if it's timed to coincide with the 2004 election, as I think it will be, you're going to see a lot of negative campaigning (reminiscent of what was done to fmr-Sen. Max Cleland) on this subject. Anyone opposed to the Act's renewal will be targeted in their state or district by the GOP with intensely negative ads hinting their support for terrorism.

My guess is that a lot of Senators and Congressman will fear this attack machine and vote for the Act's renewal, regardless of any lingering concerns over civil liberties or the Act's efficacy. At best, you'll see the moderation of certain provisions, or the addition of reporting requirements about the use of certain provisions (like FISA warrants). But in the end, I am all but certain that the Patriot Act will be renewed -- this time, most likely, without a sunset provision at all.

How Appealling moves to new site: Howard Bashman, the appellate litigator whose weblog has become the best source on the web for legal news, has officially moved to the website of Legal Affairs magazine. This is the latest in a series of moves by the best bloggers in the business, and by many magazines to acquire an online weblog presence. (See, e.g., Tapped and The Washington Monthly.) Clearly, there is great synergy between Howard's reporting and Legal Affairs, and I think this will be an excellent move for both entities.

Speaking of Legal Affairs... the magazine announced the winners of its 2004 legal writing contest for law students today. Congratulations to Kate Andrias of Yale Law School, who was selected as the first-place winner of this year's contest for her entry, "Locked Out," an essay about employers who are curtailing workers' rights by requiring them to sign arbitration agreements that bar pursuit of their interests in court.

Bad news in the newsroom

The Wall Street Journal is one of my preferred news sources, because its news articles offer an excellent blend of reporting and analysis that far surpasses the average dispatch. I have come to know several WSJ reporters, including one who I actually knew when I was a reporter in college and he was a law student. Unfortunately, the Wall Street Journal does not appear to be taking care of its reporters with the same diligence that they are taking care of their beats. The AP reports that contractual negotiations between the newspaper and the reporters' union have broken down, and that labor relations at the paper are at an all-time low.
Nearly 100 staffers from The Wall Street Journal picketed the newspaper's headquarters in New York Wednesday as relations with the company's main union turned increasingly tense.

The protest lasted just under an hour and was aimed at pressuring the company ahead of the next bargaining session, which is scheduled for April 14. The newspaper's employees have been working without a contract for a year.

Besides the picketing, most of the newspaper's reporters at the New York headquarters showed up for work at about 1:30 p.m. as part of a work-to-rule job action. The union's contract calls for a 35-hour work week, but the reporters often put in far longer hours.

E.S. Browning, a stock market reporter with 25 years' experience at the paper, said that the normally collegial atmosphere at the Journal between reporters and management was breaking down, particularly since the company was seeking cutbacks in health care coverage at the same time that top managers were receiving large pay increases.
It goes without saying that if the Wall Street Journal can treat its byline reporters this way, then imagine how it (and other large newspapers) can treat their freelance writers and other staff. I have a personal interest in this, because I contribute occasionally to newspapers and magazines, and because several of my friends make a living writing for these big papers. Although I'm not a fan of unions and labor stoppages generally, I also recognize the benefits of collective bargaining. Indeed, I benefit from the work of the graduate student union here at UCLA, which negotiated the contract under which I work as a teaching fellow and research assistant. The facts in the WSJ situation seem to be pretty unfortunate, and I hope that the newspaper can see fit to do the right thing here and take care of its employees. They bust their humps for the paper, and they deserve better than what they're getting.

Les armees privees proliferent en Irak: Guillemette Faure has an article in Le Figaro today which quotes me and others on the subject of private military contractors. I'm not fluent in French, so I'm not sure what the article says exactly. But it was fun to do the interview, and to see my quotes translated into another language.

And if you want to see more problems with the overuse of military contractors, see this article in today's Los Angeles Times. It describes, quite appallingly, what happens to American soldiers when certain services are contracted out and then the contractors fail to deliver because of deteriorating security or other reasons. As DaggerJag points out in his report from Iraq, "Unlike a soldier, you can't force a civilian trucker to drive if they don't want to." Unfortunately, soldiers (and Iraqi civilians) bear the hardship when contractors walk off their jobs or stay hunkered down.
... new troops arrived to Forward Operating Base Duke, an empty swath of desert outside the holy city of Najaf, to find a logistical nightmare.

Military buyers had signed contracts with local vendors to supply everything from water to portable tents. But the contractors were balking at delivering the goods.

"When the security situation gets bad, they don't want to deliver, and that's what's happening now,'" said Army Capt. Ron Talarico, who is helping coordinate supplies.

A temporary water shortage was remedied, but the camp still has only six portable toilets for the 2,500 troops because the company that provides them is reluctant to travel the highway.

There are no showers or laundry facilities. A shortage of tents forces soldiers to sleep in their vehicles in 100-degree weather and blistering sandstorms.

"It's a wasteland here," said 1st Lt. Matt Nethers, 24, of Los Alamitos. "The Army logistical system isn't what it could be."

Sunday, April 18, 2004
Who pays the cost of chaos in Iraq? The Iraqis

Sunday's Washington Post carries this article by Rajiv Chandrasekaran and Karl Vick on the front page which does a great job of detailing the effects of the last three weeks of violence in Iraq. A great deal of media attention has focused on the pitched battles between U.S. troops and Iraqi insurgents, but little has been written or reported on the effects this insurgency is having on the reconstruction of Iraq. This article hits the center-mass of that subject, and explains exactly what has happened to nation-building efforts since the start of this wave of violence:
The violence has brought the U.S.-funded reconstruction of Iraq to a near-halt, according to U.S. officials and private contractors.

Thousands of workers for private contractors have been confined to their quarters in the highly fortified Green Zone in Baghdad that also houses the headquarters of the U.S. occupation authority. Routine trips outside the compound to repair power plants, water-treatment facilities and other parts of Iraq's crumbling infrastructure have been deemed too dangerous, even with armed escorts.

Compounding the problem is a growing fear that insurgents will seek retribution against Iraqis working for private contractors and the occupation authority. Scores of Iraqis have stopped showing up for their jobs as translators, support staff and maintenance personnel in the Green Zone, even though there is a lack of lucrative employment elsewhere.

The security situation "has dramatically affected reconstruction," said another U.S. official in Baghdad. "How can you rebuild the country when you're confined to quarters, when only small portions of your Iraqi staff are showing up for work on any given day?"

Among the firms that have restricted the movements of their employees are the two of the largest private contractors in Iraq: Bechtel Corp. and Kellogg Brown & Root, a subsidiary of Halliburton Co. The Research Triangle Institute, a North Carolina-based firm that has been helping set up city councils across Iraq, has sent 80 staffers -- about 40 percent of its non-Iraqi workforce -- to Kuwait as a precautionary measure.

Security concerns also have hindered the implementation of a $6 billion, U.S.-funded wave of construction projects intended to help improve security by putting legions of unemployed young men to work.

"We want to offer people opportunities that compete with the financial incentives they get" from insurgent leaders, an American official said. "But it's a Catch-22. We can't start the work that's supposed to help improve security until security improves."
Analysis: This isn't rocket science. Smart people including Gen. Eric Shinseki, James Fallows, James Dobbins, and others have written on the relationship between security and nation-building. Bottom line -- you cannot effectively do nation-building without security. This principle is as fundamental as any to the conduct of nation-buildling missions. You cannot build roads, schools, factories and utility plants until the people feel secure in their homes and cities -- and until the contractors feel secure enough to do the work. This dispatch in the Washington Post indicates that we have a very long way to go before we set the conditions for effective nation-building: namely, a secure-enough situation that allows contractors and Iraqis to work. Until we tamp down this insurgency and restore order to the nation, everything else is on hold.

Update: The New York Times has a front-page article in Monday's paper on the subject of private military contractors, and some of the problems associated with their (over)use in Iraq. This is something I've written on too. But here's a report from an Army officer now deployed to Iraq with the 1st Infantry Division, which makes the point quite well:
... the recent "problems" we've been having over here have had some interesting side effects. Many of the civilian truck drivers who are working in this area have refused to drive on our convoys and that has slowed down delivery of everything from mail to food (I'm going to stock up on my favorite MREs for when they close the mess hall). I've heard that something close to 200 KBR drivers have quit and the Turkish drivers aren't going past Mosul. So much for Rumsfeld's notion that we can "outsource" all the non-essential jobs in the army to contractors. Unlike a soldier, you can't force a civilian trucker to drive if they don't want to.

History of the 'state secrets' privilege: Sunday's Los Angeles Times has a very artfully written history/news piece on the history behind United States v. Reynolds, the case where the Supreme Court announced an evidentiary privilege for national security information. Today, this privilege comes up in terrorism cases, False Claims Act cases, and a variety of others where state secrets are at stake; it also has implications for other cases of national security deference, such as the three 'enemy combatant' cases now pending before the Supreme Court.

Part II appears in Monday's paper, and also makes for fascinating reading. Anyone interested in the intersection of law and national security should read this series.

Saturday, April 17, 2004
Iraqi insurgents and the law of war

I have written a bit on the law of war and its applicability to the conflict in Iraq. My inbox has been filled by readers calling my articles naive, because of the slim chance that this enemy will comply with the law of war. To rebut those criticisms, I offer this excerpt from a CNN article on the capture of PFC Keith Matthew Maupin, an Army reservist in Iraq. While his captors don't explicitly reference the 3rd Geneva Convention or other international covenants by name, they certainly incorporate these principles as they're found in Islamic law:
"We have taken one of the U.S. soldiers hostage," the narrator [of the video depicting Maupin] said.

"He is in good health and being treated based on the tenets of Islamic law for the treatment of soldiers taken hostage. We will keep him until we trade him for our prisoners in the custody of the U.S. enemy. We want them to know -- and the whole world to know -- that when we took him in, he came out of his tank holding a white flag and he lay face down on the ground, just like other soldiers."
Analysis: This is interesting for a few reasons. First, the conventional wisdom has been that the Iraqis would not follow the laws of war in their insurgency. That has been true in some situations, like the mutilation of the four contractors two weeks ago in Fallujah. However, both the Iraqi armed forces and the Iraqi insurgents appear to be following some codes of conduct with respect to the treatment of U.S. soldiers in captivity. Self-interest is probably animating this decision by the Iraqis. They probably want to encourage reciprocity, given the large numbers of Iraqi soldiers and insurgents in U.S. custody. The Iraqis may also be concerned about reprisals, both from U.S. forces and from the Iraqi justice system if they're ever captured.

Of course, the Iraqi insurgents continue to violate the law of war in many other situations. They employ perfidy as a standard tactic. They often hide in protected sites like mosques and schools and hospitals, putting Iraqi civilians in the crosshairs as a consequence. Iraqi insurgents use indiscriminate IEDs which are as likely to kill Iraqis or foreign civilians as U.S. soldiers. And the list goes on. But this story adds at least one counterexample of where the Iraqis are following the law of armed conflict. That makes it interesting... at least to academics like me.

Update: I'm not an expert on Islamic law, and some of my analysis above assumes that Islamic law thinks about prisoners of war in roughly the same terms as our Western theological traditions. (Contemporary secular laws of war evolved from chivalric traditions and Western theological doctrine.) However, I might have spoke too soon. The folks over at (a site which makes no claim to objectivity) have a piece on this story as well, along with this citation to a relevant section of Islamic law:
When an adult male is taken captive, the caliph considers the interests (...of Islam and the Muslims) and decides between the prisoner's death, slavery, release without paying anything, or ransoming himself in exchange for money or for a Muslim captive held by the enemy. ('Umdat as-Salik, o9.14)
Assuming that's true, then there is a very loose connection between Islamic law and the 3rd Geneva Convention with respect to the proper treatment of prisoners of war. International law generally does not allow for the options of death, slavery or release upon ransom for a prisoner of war. In limited situations, the 3rd Geneva Convention does allow for repatriation exchanges. So, I should restate my analysis. The insurgents in Iraq are following some law of armed conflict -- just not the one that we subscribe to.

Suffice to say, there are very interesting theoretical issues that flow from the subscription of different sides to different laws of war and different conceptions of wartime morality. Which body of law controls? If one side commits a crime by the other's laws, does the other have any moral claim to try the crime? Is there any objective or universal law which governs each side? In a post-modern, 4th Generation conflict, is there any place for a law of war?

Friday, April 16, 2004
A prescription for the prosecution

Dahlia Lithwick has a smartly written essay this afternoon in Slate on the Justice Department trend towards prosecuting so-called "little fish" in the war on terrorism, and the implications of this trend for justice writ large. Her ultimate conclusion: that DOJ's decision to lock up the real terrorists like Khalid Sheikh Mohammed without a trial, while putting the small fries like Sami Omar Al-Hussayen on trial, does little to further the interests of justice.
The real question at the core of the Al-Hussayen trial is the same question that plagues the other big terror trials that have occurred since 9/11: Is this really the best way to stop terror? It's clear that the Bush administration doesn't believe in open criminal trials for "real" terrorists. That's why accused American citizens like Yaser Esam Hamdi and Jose Padilla are languishing in Navy brigs right now and why a ranking al-Qaida member, accused of planning the 9/11 attacks, Ramzi Binalshibh is still being interrogated in some secret location. It's also clear that the administration is not really all that interested in a fair trial for its 9/11 scapegoat of choice, Zacarias Moussaoui. Long after it became apparent that he was never intended to be the 20th hijacker, Moussaoui's trial remains stalled over the government's insistence on imposing the death penalty. The administration is thus using the civilian courts to try only the low-level conspirators; the "passive supporters," the folks who don't quite rise to the level of terrorist—most of whom are just losers and misanthropes.

* * *
Because we haven't caught many real terrorists in the act of terrorism since 9/11, and since we won't trust those we have caught to the criminal justice system, we have been left to rely on this "material support" provision to convict numerous individuals, many of whom are Americans. So far, the folks convicted of terror-related offenses have been bit players, as is evidenced by the relatively short sentences they've received. No one would characterize them as perfect innocents—several tried to fight in Afghanistan; some look like members of sleeper cells. But no one can argue—although Attorney General John Ashcroft has certainly tried—that the courts have played a vital role in stopping terror attacks in this country. In exchange for this handful of relatively minor convictions, the Justice Department has condoned outrageous prosecutorial excesses, all to prove that these convictions matter more than they do. A sampling of the major terror convictions since 9/11 highlights the problem ...
Analysis: She goes onto cite the cases of the "Detroit Three", the "Lackawanna Six", and the "Portland Seven" (query - why does DOJ use such silly monikers for all these defendants?) to make her point. And I think it's a valid argument. DOJ has put a lot of resources into prosecuting these kinds of individuals for violations of 18 U.S.C. 2339a and 2339b, the "material support" statutes. The administration has justified this with the argument that it has been going after inchoate forms of terrorism -- that is, targeting terror cells in their infant stages before they can develop, mature, and conduct actual attacks. I think this focus on material support needs to be a part of the DOJ strategy, but I agree with Ms. Lithwick's question -- should it really be the main focus of the administration's legal war on terror?

The administration has advanced a number of arguments for why it should not put a real terrorist on trial, and it has pointed to the circus trial of Zacarias Moussaoui as its main evidence for what would happen if it did. The biggest (and most valid, in my opinion) reason is that a trial would interfere with ongoing intelligence collection efforts, both by impeding continued interrogation of the defendant (e.g. Khalid Sheikh Mohammed) and by exposing "sources and methods" used in connection with the defendant. This is a very real concern. But I have to wonder whether this concern is somewhat diminished 12, 18, 24 months after the capture of these terrorists. Moreover, there are strong procedural safeguards in place (collectively codified as the Classified Information Procedures Act) for dealing with classified material in federal court, and a number of bigtime espionage cases have been conducted without a compromise of "sources and methods". It seems to me that the administration could mitigate these problems if it wanted to. In actuality, it seems to me that the real issue is one of certainty -- the White House and Justice Department don't want to risk an acquittal or hung jury in any of these cases. I'm not sure that's a good enough justification for keeping these cases out of federal court.

Stay tuned -- oral argument is scheduled in Al-Odah v. United States for Tuesday, April 20th, before the Supreme Court. Oral argument in Hamdi v. Rumsfeld and Padilla v. Rumsfeld is scheduled for Wednesday, April 28th. Each of these cases has the potential to radically change the landscape of the law with respect to terrorism, national security and civil liberties.

For more background on the Al-Odah and Rasul cases (consolidated for argument), see this note by the lawyers at SCOTUSBlog, complete with links to the lower court decisions and briefs in the case. Also see this Slate essay by WP Supreme Court reporter Charles Lane on how the issues may be framed in the case.

More to follow...

The next big political book
New Bob Woodward book on Iraq war policy about to hit the street;
White House goes to the mattresses to ready its p.r. counter-offensive

In case you've missed the p.r. blitz so far, Bob Woodward's new book "Plan of Attack" is about to be released, and it's full of startling revelations about who knew what in the Bush White House as the nation marched to war. Like other Woodward books, the truth is mostly a function of access -- those who gave Mr. Woodward access are likely to be rewarded; those who did not will either be punished or left out. Notwithstanding that fact, Mr. Woodward was able to pick up some extremely interesting facts during his stint as a fly on the wall of the White House, including this passage as reported by the Washington Post:
By early January, 2003, Bush had made up his mind to take military action against Iraq, according to the book. But Bush was so concerned that the government of his closest ally, British Prime Minister Tony Blair, might fall because of his support for Bush that he delayed the war's start until March 19 here--March 20 in Iraq--because Blair asked him to seek a second resolution from the United Nations. Bush later gave Blair the option of withholding British troops from combat, which Blair rejected.

Woodward describes a relationship between Cheney and Secretary of State Colin L. Powell -- never close despite years of working together -- that became so strained that Cheney and Powell are barely on speaking terms. Cheney engaged in a bitter and eventually winning struggle over Iraq with Powell, an opponent of war who believed Cheney was obsessed with trying to establish a connection between Iraq and the al Qaeda terrorist network and treated ambiguous intelligence as fact.

Powell felt Cheney and his allies -- his chief aide, Lewis "Scooter" Libby, deputy defense secretary Paul Wolfowitz and undersecretary of defense for policy Douglas Feith and what Powell called Feith's "Gestapo" office -- had established what amounted to a separate government. The vice president, for his part, believed Powell was mainly concerned with his own popularity and told friends at a private dinner he hosted a year ago to celebrate the outcome of the war that Powell was a problem and "always had major reservations about what we were trying to do."

Before the war with Iraq, Powell bluntly told Bush that if he sent U.S. troops there "you're going to be owning this place." Powell and his deputy and closest friend, Richard L. Armitage, used to refer to what they called "the Pottery Barn rule" on Iraq -- "you break it, you own it," according to Woodward.

But, when asked personally by the president, Powell agreed to present the U.S. case against Hussein at the United Nations in February, 2003 -- a presentation described by White House communications director Dan Bartlett as "the Powell buy-in." Bush wanted someone with Powell's credibility to present the evidence that Hussein possessed weapons of mass destruction -- a case the president had initially found less than convincing when presented to him by CIA deputy director John McLaughlin at a White House meeting on December 21, 2002.

McLaughlin's version used communications intercepts, satellite photos, diagrams and other intelligence. "Nice try," Bush said when he was finished, according to the book. "I don't think this quite -- it's not something that Joe Public would understand or would gain a lot of confidence from."

He then turned to Tenet, McLaughlin's boss and said, "I've been told all this intelligence about having WMD and this is the best we've got?"

"It's a slam dunk case," Tenet replied, throwing his arms in the air. Bush pressed him again. "George, how confident are you."

"Don't worry, it's a slam dunk," Tenet repeated.
I've already ordered my copy... I guess law school studying will have to wait.

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