INTEL DUMP has moved to its new home at washingtonpost.com, where is now part of the newspaper's online opinion section. At the new site, I will continue to explore issues concerning national security, the military, foreign policy, veterans issues, and the law -- and whatever else happens to cross my radar as an important subject worth discussing. I hope that you'll visit the new site, and contribute to a lively debate in the comments sections as I've been fortunate to have at this site.

Thanks!

Via Scott Horton comes the news that the U.S. Marine Corps has charged an Iraqi-Canadian civilian contractor in Iraq with brandishing a knife and stabbing another contractor. The charges follow an important change to the Uniform Code of Military Justice in September 2006 which, in theory, extended the code's reach to include civilians and contractors on the battlefield.  As Scott notes, there's still much we don't know here.  But, this case does represent a significant development in the application of U.S. law to contractors overseas, and I think there will be a lengthy court fight over whether the UCMJ can be applied to civilians in this manner.

(Cross-posted at Convictions)

If you're in the Los Angeles area this Friday, Loyola Law School's International and Comparitive Law Review is hosting a symposium on "Transformation in Iraq -- From Ending a Modern War to Creating a Modern Peace." Here's the symposium abstract:

This symposium will assess the legitimacy and viability of current international law, insofar as it governs the transformation from post-war occupation to post-occupation peace. Using Iraq as a test case, the symposium will test this modern law against both changed contemporary realities and recent developments in moral and political thought. The first panel will will bring together a number of renowned moral, political, and legal philosophers to address the question of what fundamental obligations the U.S. has to Iraq in moving from occupation to post-occupation. The second panel assess the current state of the law, and consider whether it has evolved sufficiently from its origins to encompass democratic "nation building" and economic reforms within its ambit. The third panel will, finally, explore the possibility of developing American exit strategies from Iraq that meet these broad moral and legal requirements.

I'll be talking on the afternoon panel about practical realities of exiting Iraq, and the legal consequences of those options.

(Below is a guest contribution from "BG" — a highly respected intelligence officer who's recently served multiple tours overseas in interesting places — on the current state of affairs in Pakistan. I think he poses some very important questions.)

What is better? Supporting an undemocratically elected leader to help us hunt down senior Al Qaeda leadership, or supporting the rightfully elected leaders who may hinder your wartime efforts? This is the political, diplomatic and military problem currently facing America in the very complex fight against Al Qaeda — particularly in Pakistan.

On the surface, it sounds like a no-brainer. You support the democratically elected majority. After all, isn’t that the strategy, to defeat extremists and religious zealots with democracy and the power of the people?

But wait, it gets more complex.

Members of Sharif's party wore black armbands as they were sworn in, to protest against Musharraf, whom they consider an unconstitutional president.

"We took the oath because there is a larger objective and that is the restoration of the judiciary," Senior Minister Nisar Ali Khan, who was given the communications and farm portfolios, said.

Musharraf purged the judiciary in November when he resorted to emergency rule for six weeks to stop the Supreme Court ruling his re-election by the outgoing parliament was unconstitutional.

Bhutto's widower, Asif Ali Zardari, who succeeded her as leader of the Pakistan People's Party, and Sharif have promised to reinstate deposed Supreme Court Chief Justice Iftikhar Chaudhry and his colleagues through a parliamentary resolution within 30 days of forming a government.

That is likely to trigger a show-down with Musharraf, who will fear the judges will resurrect constitutional challenges to his re-election last October.

A few thoughts:When fighting a war, law is what we could call a constraint or a limitation. Laws and rules are important, but it can also be detrimental to the mission. A leader must determine the risk and consequences of obeying the rules, bending them or breaking them. One of the greatest dilemmas in prosecuting a war against non-nation actors such as AQ are the international and local legal constraints. It is assumed that Musaharraf’s reason for purging the court was due to his own political problems, however, the military problem of detaining international terrorists in Pakistan did likely benefit from this move. If the Pakistanis or the U.S. are able to locate AQ senior leadership in Pakistan, the location is a well-established assessment, then what happens if we find one of them?

The preferred method is having the host nation capture the individual and try them (since renditions are very unpopular and present other legal challenges).

Several problems present themselves by relying on the host nation judiciary (in this case, Pakistan), including but not limited to:
- Will the evidence collected against the terrorist hold up in a Pakistani trial?
- How is the evidence classified, and was the method of collection legal within the Pakistani “Bill of Rights.” (Ed. note: Was it tainted by torture?)
- Will the evidence hold up in court?
- Did the terrorist break any local Pakistani laws?
- Can the Pakistani courts try a terrorist for breaking international laws?
- What are the legal requirements from the Pakistan judiciary to allow the U.S. to take custody of the terrorist, assuming that that is even legal?

Local courts are corruptible and can fall victim to threats and intimidation, which may even lead up to violent retribution. These factors play a role in the capability of the host nation judiciary, and its ability to provide valid, legitimate outcomes which will bind the parties and be accepted by the people.

With no judiciary in place, these questions have been moot points as of late. But what will happen now that a truer form of democracy is taking hold in Pakistan?

Perhaps it is time for the U.S. administration to cut ties with Musharraf, whose position is becoming increasingly untenable everyday, perhaps even go against a long standing alliance by speaking out against Musharraf in an effort to cozy up with the new government. This would hopefully smooth the way to establish a treaty or agreement that would ensure that the military and political objectives of destroying AQ can be accomplished within the constraints of the law.

Beyond that local problem, perhaps there should be an international push, led by the U.S., to establish an international judiciary body (God forbid, use the U.N. or ICC), that will establish and enforce these international laws. (Ed. note: perhaps also some sort of international agency capable of assisting with transitional justice in conflict zones.)

Not being a lawyer myself, and knowing even less of international law, it is very possible that such international laws exist, but if they do, who is enforcing them? If the laws are out of date, who rewrites them to make them relevant? And how does law on the books translate into law in action?

Army Lt. Col. John Nagl argues on today's New York Times op-ed page for a vastly larger American military commitment to advisory operations. Nagl, as many Intel Dump readers know, is one of the Army's leading intellectuals, a scholar of counterinsurgency, and an advocate of a particular approach to conflict which stresses U.S. action "by, through and with" local partners and allies. Nagl has also decided to leave the Army for the centrist thinktank CNAS, for which he has authored a report on the need for an Army adviser corps. In the Times, Nagl writes:

. . . Based on American experiences in Korea, Vietnam, El Salvador and now in Iraq and Afghanistan, an advisory strategy can help the Iraqi Army and security forces beat Al Qaeda and protect their country. (Obviously, these are my personal views, and do not represent those of the Army.) However, doing so will require America’s ground forces to provide at least 20,000 combat advisers for the duration of the wars in Iraq and Afghanistan — men and women specially equipped and trained to help foreign forces bear a greater share of the combat load.

Unfortunately, America’s military did not have the advisory capacity it should have had after major combat operations ceased. The first attempt to create a new Iraqi Army was farmed out to private contractors. When that effort failed, and it became clear that the assistance needed to help the fledgling Iraqi Army far exceeded the capability of the Army’s Special Forces, regular Army troops were called on to fill the gap. Given their lack of training, these soldiers did remarkably well, but it was always a stopgap measure.

Fortunately, the advisory effort has been improved in the last couple of years. No longer do our troops receive training of varying quality conducted at different Army posts; since 2006, all Army, Navy and Air Force adviser training has been centralized at Fort Riley, Kan., under the Army’s First Infantry Division, where I lead one of the training battalions engaged in this effort.

Graduates deploy in 10- to 16-person teams that embed with Iraqi and Afghan security forces, assist in their training and accompany them into combat. Not only does this give those foreign troops exposure to our military tactics, it also provides a critical link to American artillery, air support and logistics during operations. Still, we have not seen the urgency the mission requires. . . .

I think Nagl's right to argue that we need a military adviser corps — as well as strategy, doctrine, organizations, etc., to support such an institution within the military. I agree with Nagl and the "COIN mafia" that we're likely to see more "hybrid wars" in the 21st Century, and that the best option for the U.S. is to work through local partners and allies should it choose to intervene in those conflicts. We need to think of advisory operations both with respect to Phase IV (i.e. Iraq/Afghanistan-style) operations, and also Phase 0 operations — the kind of military-to-military assistance which can bolster security in countries before conflict erupts. To do all these things, we need an adviser corps like the one Nagl describes, and an adviser framework like what Bob Killebrew recommends.

However, that's not the end of the story.

Note that we're talking here about military advisers — not State Department diplomats to advise on governance issues, nor Justice Department lawyers to advise on the rule of law, nor Treasury Department officials to advise on the establishment of financial markets. I think this is a strategic mistake, and one which reflects our overuse of military means in pursuit of American foreign policy.

I sort of liken this to the team you'd want to hire if you want to build a house. You wouldn't ask the carpenter to do everything — lay the foundation, build the frame, erect the house, install the plumbing, do the wiring, etc. I mean, not if you want the plumbing and electrical systems to actually work. But that's precisely the approach we've taken in Iraq and Afghanistan — asking Army and Marine Corps personnel to do everything from warfighting to nation building to advising to humanitarian assistance. Sure, like the trusty carpenter, our soldiers and Marines can read a book to figure it out. This has hardly been an optimal solution. We ought to be sending specialists to do the job. And although we talk a lot about how capable the Army and Marines are at fighting the proverbial "3 block war" — is this really the best approach?

So, back to Nagl's argument. I think we do need a military adviser corps, and I'm behind him 100% on that. But I think we need a much broader advisory and foreign assistance capability in the federal government — one which is interagency, expeditionary, well-resourced, and capable of deploying the right teams of people and units for a given contingency.

Update I: Abu Muquwama, who has been known to drink a few beers with Lt. Col. Nagl from time to time, points out that it might be tough for this adviser corps idea to gain political traction: "The only problem with Nagl's idea is he has yet to figure out how an adviser corps can be built in 48 different states and 200 congressional districts, providing jobs for 10,000 Americans and thus eternally immune to budget cuts." Uh huh.

Update II: A few commenters have noted that we have something like this already in Afghanistan and Iraq: the State Department-led Provincial Reconstruction Team ("PRT") effort. Quite right. But this is an anemic effort, at best, thrown together with ad hoc organizations which are understaffed, undermanned, and under-capable. Not to mention that they're far too dependent on the military. What I'm envisioning here is something more similar to the CORDS program from Vietnam — a truly robust civilian organization comparable to a PRT Corps that could fan out into every town and province to run nation-building, reconstruction, governance and economic operations. (See also this article and this article from Military Review on the lessons of CORDS.)

After reading the March 2003 memo (NYT and WP), I feel like the youngest kid at Passover dinner, who by tradition asks the question "How is this night different from all other nights?"  Except that in this case, I'm left with the question of "How is this torture memo different from all the others we've read so far?"

I agree with Marty that the answer has to do partly with the bureaucratic manner it which it was conceived, authored, published and classified.  It's highly unusual for such a broad statement of administration policy to be issued over the signature of a deputy assistant attorney general — and that such a low-ranking official would basically be speaking for the Justice Department and the White House on these issues through the interagency process to the Pentagon.  So this memo is different to the extent that it didn't come from Alberto Gonzales or Jay Bybee or someone else of significant rank.

It's also different because it appears to have been conceived entirely by the super-secret-squirrel (a military doctrinal term) working group of lawyers which included David Addington, John Yoo, and a handful of others.  That cloistered environment facilitated much of the legal reasoning in the memo; it also ensured it would be highly classified, and kept from public view for a long time.

But what about the legal reasoning?  Is this really any different from other memos we've seen (and written about) so far?  It's certainly longer.  And as Orin points out, it alternates between solid and shaky analysis.  But in general, I think Emily's right that this reflects the same broad, sweeping rhetoric we have seen before in other torture memoranda hatched in the White House, Justice Department, and Pentagon.  What makes this memo significant, I think, is the way that Defense Department (and other government agency) personnel relied on this memo to create the detention and interrogation regime at Guantanamo, Abu Ghraib, and Bagram air base.

(Cross-posted at Convictions)

"Policy Dialogue Allows U.S., African Officials to Address Security Issues"

WARRENTON, Va., March 28, 2008 – The U.S.-Africa Defense Policy Dialogue that ended here today, was a chance for officials on both continents to speak, to listen and to move forward, said Theresa Whelan, deputy assistant secretary of defense for African affairs.

Whelan’s office sponsored the three-day conference, in which representatives from more than 40 African nations took part. Whelan said the dialogue helped defense policy people and officials serving within the U.S. Africa Command understand what is important to African allies.

* * *
Seminar leaders solicited African viewpoints on those issues and the juxtaposed them with American viewpoints. They then asked the participants to compare and contrast the viewpoints and note both areas of divergence and areas of convergence.

Ummm..... why exactly is this dialogue taking place in Warrenton, Virginia? I understand the town is close to Washington, and home to the "well-known Airlie Conference Center, popular with agencies of the federal and state government, associations and corporations." The food is probably pretty good in Warrenton, and it's an easy commute from Washington. There's a good conference center there, and I bet it's totally wired for BlackBerry and wifi coverage. But do you really think this sends the right message to the African delegations attending the conference? How do you think these African diplomats felt after schlepping across the Atlantic from Africa (assuming these countries didn't just send their embassy personnel), deal with U.S. customs and immigration, trek out to the Virginia suburbs, and then participate in this conference?

And another thing — if this was such a "dialogue," why do the DoD writeups contain only quotes from Americans (see here, here, and here) ???

Maybe next time AFRICOM could do this kind of dialogue in, say, Africa?

Today's Washington Post reports that the Bush administration has decided to charge Ahmed Khalfan Ghailani with before a military commission at Guantanamo Bay for acts committed before Sept. 11 — to wit, his alleged participation in the bombing of the U.S. Embassy in Tanzania.  According to the Defense Department, Ghailani will be charged with conspiracy, murder, attacking civilians, destruction of property in violation of the Law of War, terrorism, and material support to terrorism, among other charges.  The Post reports:

Ahmed Khalfan Ghailani, who was held in secret CIA custody for more than two years before arriving at Guantanamo Bay in late 2006, was accused of plotting and carrying out the embassy bombing as part of his work for al-Qaeda and Osama bin Laden. The attack, on Aug. 7, 1998, killed at least 11 people and injured nearly 100 more.

Ghailani was also accused of later going to al-Qaeda training camps in Afghanistan, working as a bodyguard for bin Laden and forging documents for other terrorist conspiracies. At one time, he was on the FBI's 25 Most Wanted list and had a $5 million bounty on his head. He was arrested in a raid on his home in Pakistan in July 2004.

Almost all of his alleged "war crimes" occurred before the Sept. 11 attacks, and most predated the nation's fight against terrorism. Four co-conspirators in the Tanzania bombing were convicted in U.S. federal courts. Ghailani, too, was indicted in the United States, but federal authorities have opted to try him before the commission, composed entirely of military officers.

I'll be very interested to see how the Bush administration's lawyers argue their way around the provision of Article I that reads "No Bill of Attainder or ex post facto Law shall be passed".  Setting aside the myriad objections to the military commissions generally, and this case specifically, I think this is going to present a major hurdle for the government.

I'm also concerned about the deliberate decision to take this case away from federal prosecutors (who have already scored four convictions — that's four more than Team Gitmo, in case you've lost count) in favor of the military tribunals at Guantanamo Bay.  In my opinion, our default choice for the prosecution of suspected terrorists should be federal court.  The Moussaoui prosecution was an anomaly; many, many terrorism prosecutions have gone forward through trial and convictions, including United States vs. Bin Laden (in absentia).  The substantive and procedural due process granted by federal courts has strategic value — it confers legitimacy on the outcome.  That legitimacy matters for the struggle against terrorism, and I think it's crucial that evaluate our prosecutorial decisions with that strategic calculus in mind.

(Cross-posted at Convictions)

On Monday, Treasury Secretary Hank Paulson unveiled the Bush administration's "Blueprint for Stronger Regulatory Structure," its latest response to the sub-prime mortgage crisis and severe case of influenza affecting America's financial markets.  No surprise, the plan calls for some fairly sweeping changes in the way the SEC, Federal Reserve, and other agencies regulate America's financial markets.  According to the Post:

. . . Treasury Secretary Henry M. Paulson Jr. said he also plans to ask Congress this year to set up a new agency to oversee mortgage lending and take action to enhance his department's role as the chief regulator of financial markets.

The Treasury's initiatives seek to sweep away the current patchwork of regulation over the coming decade in favor of three more powerful agencies to oversee banking, market stability, and consumer and investor protection. The plan's authors have argued that such changes are needed because government oversight has not kept up with the pace of financial innovation.

Paulson acknowledged that the recommendations would not prevent future crises but said that they would make government more nimble in addressing them. "We should and can have a structure that is designed for the world we live in," he said in a speech at the Treasury.

Uh huh.  So, let me make sure I have this right.  The administration embraced deregulation and free market theory as if it were handed down from Mt. Sinai.  It then sat idly by while the sub-prime mortgage market imploded, and watched as that market's failure trickled up into other sectors of the economy.  All the while, this admistration spent taxpayer money like a drunken sailor (to use Sen. John McCain's memorable phrase), running up the federal debt and mortgaging our grandchildren's future.  And the administration pursued wars in Iraq and Afghanistan likely to cost the country $3 trillion.  And now, they want the people trust the Bush administration by giving it more power over the American economy?

Wall Street, meet the unitary executive.  Another day, another crisis, another power grab.

In Slate today, Fred Kaplan and I have a column on several things we think the next president (regardless of who he/she is) should do to fix America's ailing military. The list looks beyond Iraq and Afghanistan to the deeper, structural issues facing the force, and hopefully proposes (or endorses) a few good ideas, including:

* Overhaul the budget.

* Rejigger the military services.

* Fix the Army.

* Invest in people.

* Promote the right leaders.

* Create incentives for a real nation-building or counterinsurgency capability.

* Spread the responsibilities around (to other agencies).

* Taxes.

Read more here.

The NYT/AP reports that military officials have confirmed the death of Army Sgt. Sgt. Keith Matthew Maupin, after finding his remains in Iraq and conducting DNA testing.

Sergeant Maupin was a 20-year-old private first class when he was captured on April 9, 2004, after his fuel convoy, part of the 724th Transportation Company, was ambushed west of Baghdad. A month after his capture, he was promoted to the rank of specialist. In April 2005, he was promoted to sergeant.

A week after his capture, the Arab television network Al Jazeera broadcast a videotape showing Sergeant Maupin sitting on the floor surrounded by five masked men holding automatic rifles.

That June, Al Jazeera broadcast another tape purporting to show an American soldier being shot. But the dark and grainy tape showed only the back of the victim’s head and not the actual shooting.

The Maupins refused to believe it was their son, and the Army had listed him as missing-captured. The Maupins lobbied hard for the Army to continue listing their son as missing-captured, fearing that another designation would undermine efforts to find him.

A very sad closing chapter. Nearly every soldier I knew in Iraq knew of Sgt. Maupin — his story was both a cautionary tale about being captured, and an inspiring tale about how the U.S. military lived up to its ethos of not leaving a fallen comrade behind on the battlefield. The Maupin family participated in a number of care package drives and other efforts aimed at supporting the troops. Those boxes would arrive in Iraq with a note about Sgt. Maupin — reminding us, the soldiers receiving them, not to forget their son and never to stop looking. I'm sad that the outcome couldn't have been better here, but grateful that this family has some closure now.

For the third straight year in a row, UCLA is headed for the Final Four. This year's Bruin team has looked very strong in the tournament. Assuming it makes it past Memphis or Texas in the next round, the odds are that UCLA will face North Carolina for the NCAA Championship. The N.Y. Times coverage focuses on the dynastic aspect to this year's tournament play:

PHOENIX — Since John Wooden retired in 1975, U.C.L.A. has spent the better part of three decades trying in vain to replace him.

The Bruins have run through eight coaches, seeing everything from a classic Larry Brown two-year drive-by to the successful but ethically challenged tenure of Jim Harrick.

But in luring Ben Howland back home to Southern California from Pittsburgh in 2003, U.C.L.A. finally appears to have found the right coach to rebuild a dynasty in Westwood.

In beating third-seeded Xavier, 76-57, in the West Region final, Howland has led his top-seeded Bruins to the Final Four for the third consecutive season.

This marks the first time since Wooden’s tenure as the coach that U.C.L.A. has reached the Final Four in three consecutive seasons. It also puts Howland in elite contemporary company; Michigan State’s Tom Izzo and Duke’s Mike Krzyzewski are the only coaches to lead their programs to three consecutive Final Fours since the tournament expanded to 64 teams in 1985.

But there’s something missing from Howland’s résumé, and after two shaky N.C.A.A. tournament games, the Bruins will try to take the national title back to Westwood for the first time since 1995.

“I think this is by far the best team in the last three years,” Howland said.

Go Bruins!

Steve Coll, who earned a Pulitzer Prize for his amazing book "Ghost Wars" on the rise of Al Qaeda, has a new book coming out titled "The Bin Ladens: An Arabian Family in the American Century." Judging by its review in Sunday's Washington Post, this is an absolute must-read book. Milton Viorst writes in his review:

Change the names and locations, and Steve Coll's marvelous book about the bin Laden family would begin like a familiar American saga. An illiterate youth arrives in a land of opportunity from his impoverished homeland and, by dint of ambition, talent and hard work, becomes immensely rich and powerful. He collects properties, airplanes, luxury cars and women -- tastes he passes on to his sons. He earns a niche in the pantheon of great builders of his adopted country.

The youth is Mohamed bin Laden, justly venerated in Saudi Arabia. But collective memory plays funny tricks, and in the West he will be permanently remembered as the father of Osama. The bin Ladens, though their Horatio Alger story overlaps Western experience, emerge as unmistakably Middle Eastern -- to the point of being torn asunder by today's religious struggles. Coll, a Pulitzer Prize winner and former Washington Post managing editor, leaves the psychology to his readers. He prefers writing on economics and politics, leavening them with anecdotes and gossip; the result is a fascinating panorama of a great family, presented within the context of the 9/11 drama.

* * *
Coll dwells only in passing on the violence later attributed to Osama bin Laden and al-Qaeda. He charts Osama's rising anger at the Sauds and at America. He leaves no doubt that Osama's organizational and fund-raising talents remained sharp; he even credits Osama's engineering with making the caves of Tora Bora, where he took refuge, impregnable to U.S. forces. As for bin Laden's kin, Coll suggests that, though most retain warm feelings for him, after 9/11 necessity forced them to distance themselves from his actions. Taken together, they seem more bewildered than angered by the course he has chosen. Responsible for what is now a global company, the brothers have been particularly stringent; the sisters appear to be more sympathetic. Whether any of them secretly sends him money remains uncertain. As for the 9/11 conspiracy, Coll repeats little of what we already know. Instead, he has chosen to write about a man and his family, enriching our understanding of the powerful impact they have made on our times.

I just pre-ordered my copy . . .

In an incredibly opaque speech to the U.S. Chamber of Commerce this week, Treasury Secretary Henry Paulson implied that he would seek "the same type of regulation and supervision" for investment banks as that which exists for commercial banks.  He made the comment while defending the Fed's moves to front $30 billion to support the rescue of the ailing Bear Stearns investment bank. But, Paulson stopped short of encouraging a massive regulatory push — saying that "recent market conditions are an exception from the norm" and that "bank regulation . . . is fundamentally different from non-bank regulation." 

It's not clear yet how much legal or regulatory change is coming to emerge from the Bear Stearns crisis, or the sub-prime mortgage meltdown.  But a front-page article ($) in Monday's Wall Street Journal speculated these crises would bring a tectonic shift in the way American law treats business:

The idea that less regulation is better for the economy has held sway in Washington since the Reagan administration. Now that consensus is crumbling, posing a potentially costly challenge to business no matter who wins the White House in November.

The crisis in the nation's housing market, the recent turmoil on Wall Street and a series of safety scares involving food, drugs and toys are driving both political parties to reconsider how much companies and markets should be relied upon to police themselves.

Even under the pro-business Bush administration, it appears the question isn't whether the government will enact tougher rules for various parts of the economy, but just how much stricter those rules will be. The new climate has some business groups girding for battle against what they fear could be onerous new requirements.

"We're in for a potentially significant regulatory response," said Glenn Hubbard, dean of Columbia University's business school and a former chief economist for the Bush White House, referring to the credit crunch and its impact on financial markets. "The hope is we won't overreact."

The next day's reactions ($) to Paulson's speech seem to confirm that such a tectonic shift is underway.  I think some regulatory improvements are in order, but like Prof. Hubbard, I think there's also a significant risk of overreaction here.  And more broadly, I worry that we might be looking to law as a false panacea for all that ails American capitalism today — and specifically, what afflicts the mortgage market.  There are limits to what the law can accomplish, and I don't know that re-regulation or toughened financial laws will do what we want here.  What do you think — is this tectonic shift away from deregulation a good idea?  What is the proper role for law in America's financial markets?

I've been waiting for a bit of clarity to emerge in Basra before commenting. Unfortunately, that could be a pretty long wait. So I figure now's as good a time as any to opine a bit on what's going on in Southern Iraq.

According to the New York Times:

BAGHDAD — An assault by thousands of Iraqi soldiers and police officers to regain control of the southern port city of Basra stalled Wednesday as Shiite militiamen in the Mahdi Army fought daylong hit-and-run battles and refused to withdraw from the neighborhoods that form their base of power there.

American officials have presented the Iraqi Army’s attempts to secure the port city as an example of its ability to carry out a major operation against the insurgency on its own. A failure there would be a serious embarrassment for the Iraqi government and for the army, as well as for American forces eager to demonstrate that the Iraqi units they have trained can fight effectively on their own.

During a briefing in Baghdad on Wednesday, a British military official said that of the nearly 30,000 Iraqi security forces involved in the assault, almost 16,000 were Basra police forces, which have long been suspected of being infiltrated by the same militias the assault was intended to root out.

The operation is a significant political test for Prime Minister Nuri Kamal al-Maliki, who traveled to Basra to oversee the beginning of the assault. It is also a gamble for both the Iraqi and American governments. The Americans distrust the renegade cleric Moktada al-Sadr and his Mahdi Army militia, who consider the Americans occupiers.

* * *
Mr. Maliki issued an ultimatum on Wednesday for Shiite militias in Basra to put down their weapons within 72 hours. Yet battles continued, killing at least 40 people and wounding 200 others, hospital officials said.

Though American and Iraqi officials have insisted that the operation was not singling out a particular group, fighting appeared to focus on Mahdi-controlled neighborhoods. In fact, some witnesses said, neighborhoods controlled by rival political groups seemed to be giving government forces safe passage, as if they were helping them to strike at the Mahdi Army.

Even so, the Mahdi fighters seemed to hold their ground. Witnesses said that from the worn, closely packed brick buildings of one Mahdi stronghold, the Hayaniya neighborhood, Mahdi fighters fired mortars, rocket-propelled grenades, automatic weapons and sniper rifles at seemingly helpless Iraqi Army units pinned on a main road outside, their armored vehicles unable to enter the narrow streets.

The assault has also sparked continuing violence by outraged Mahdi commanders in other major cities, including Baghdad, where the sprawling urban slum called Sadr City forms the militia’s power center in Iraq.

It's difficult to see how this ends well. This is some of the nastiest intra-sectarian fighting we've seen in Iraq. Second, it looks pretty clear that Maliki is using the Iraqi security forces to consolidate his own power and eliminate his rivals. Third, I can only imagine the trepidation being felt by Sunni leaders who are watching this and wondering whether they're next on Maliki's hit list. For now, the heavy fighting remains limited to Basra, although skirmishes have erupted throughout the country. If this clash in Basra lasts longer than a week, that's going to be really bad for the Maliki government. If the heavy fighting spreads, that's going to be even worse.

Update I: Abu Muquwama adds some trenchant observations and analysis at his site. He keys in on the same thing I noticed in the press coverage -- "The Basra operation, which senior Iraqi officials had been signaling for weeks, is considered so important by the Iraqi government that Mr. Maliki traveled to the city to direct the fighting, several officials said." Seriously? How is this possibly a good idea? I mean, it ain't like Maliki is an Iraqi version of Dwight Eisenhower or U.S. Grant. He's a 3rd-string kleptocrat whose political skills basically stop at the edge of the Green Zone.

Update II: Oh yeah, and another thing. Every time you think of the "adviser model" for Iraq, you should think of this operation in Basra. Because this is the end result of the U.S. advisory effort to date -- which has focused on creating well-trained and equipped units at the tactical level, but has basically failed at the national, strategic level. The leaders of the Iraqi security forces at the ministry level are as bad as they ever were. And the national government is about as bad. Training and advising Iraqi units at the brigade level and below is well and good. But if you fail to properly shape the national command structure, you're handing those units over to leaders who will misuse them.

Like my Convictions colleagues Marty, Diane and Deborah,  I too am excited about today's oral argument in Munaf and Omar.  Not just because I think this case raises thorny issues, but also because this case deals with a subject I have some personal experience with.

I served in Iraq from 2005-06 as an adviser to the Iraqi police in Baqubah.  My team also worked closely with the provincial courts and jails, as part of an effort to improve the larger rule of law system.  Every time we visited a police station, we also looked at its detention cell or jail.  We lived on the police headquarters compound for the first 3 months of our tour, literally living above the provincial jail; we later moved down the street, and spent at least two days inside the jail.   Attorneys for Munaf and Omar now argue that it would be unlawful to transfer their clients from U.S. (or Multi-National Forces) custody to Iraqi custody because of the conditions in the Iraqi jails and prisons — and the likelihood of torture there.  I believe these arguments, because I saw the overcrowding, squalid conditions, lack of due process, and evidence of torture in these facilities with my own eyes.

Second, I soldiered under the Byzantine organization known as Multi-National Forces - Iraq.  I served pretty far down in the command structure on an adviser team; between me and MNF-I lay the brigade, division, and corps layers of command.  However, in our work with the Rule of Law system, and Iraqi security forces, we frequently interacted with senior officials and leaders from MNF-I.  Notwithstanding the legal arguments from the Government's counsel, there is no question in my mind that this is a U.S.-led, U.S.-centric, and U.S.-run organization in every way — right down to the American comfort food they serve in the chow halls next to the Republican Palace in Baghdad that MNF-I uses for a headquarters.  I understand the Government's argument with respect to the U.N. Security Council mandate and other points, but think that argument flies in the face of reality.

Why should reality matter?

I think the Court is particularly sensitive to what I'll call the "ground truth" in these detention cases.  I think the justices remember well how they heard oral argument in Rasul and Hamdi in April 2004 — and even asked a question about torture, eliciting no response from the Government — only to have CBS air the first images from Abu Ghraib that night on television.  I also think the Court is aware of how the torture issue has developed since then.  My sense is that the Court will consider the realities of Iraq in their deliberation, and draw out some of those realities today at oral argument.

I look forward to reading Dahlia's Supreme Court dispatch in Slate tonight . . .

Marking the moment when the 4,000th U.S. servicemember died in Iraq seems both arbitrary and macabre. Military, the 4,000th death there is no more significant than the 3,900th or 4,055th one. And I'm uncomfortable with the "deathwatch" aspect to these kinds of stories -- and the way the media generally focuses coverage on U.S.casualties, rather than everything else going on in Iraq.

However, I also believe in shining a light on the human cost of this war (both for us and the Iraqis). And I generally think that soldiers tell their stories the best. This devastating story in the New York Times does both, offering us the words of six soldiers who died in Iraq during the past year. It's a difficult article to read, but a necessary one.

(Via WSJ Law Blog) In Friday's Wall Street Journal, Jess Bravin previewed the cases of Mohammad Munaf and Shawqi Omar, two U.S. citizens now being held by the U.S.-led coalition in Iraq, pending transfer to Iraqi authorities. Or are they? The key question in the case is whether these men are actually being held by the U.S. Government — or whether they are being held by a Multi-National Force, acting pursuant to a U.N. mandate, not subject to the jurisdiction of federal courts. That question will be argued on Tuesday before the U.S. Supreme Court. According to the WSJ:

The government cites a postinvasion Security Council resolution on the reconstruction of Iraq to assert that Gen. David Petraeus, the top U.S. commander in Iraq, and his troops serve in an international army that "is legally distinct from the U.S. military."

The government is relying on a 1948 precedent in which the Supreme Court rejected a similar petition from former leaders of Imperial Japan convicted by the International Military Tribunal for the Far East. The court said that body was "not a tribunal of the United States" but rather an "agent of the Allied Powers."

Lawyers for the men say it's a "formalistic fiction" to claim the U.S. military in Iraq is a U.N. force. Lower courts have split on the question, with one panel of the U.S. Court of Appeals for the District of Columbia siding with the government against Mr. Munaf, and a different panel ruling against the government and for Mr. Omar.

David Kaye, a State Department lawyer during the first years of the Iraq war, says the resolution authorizing "a multinational force" to help stabilize Iraq was developed at the urging of smaller countries serving under U.S. command. "It was purely as cover for others, not for us," he says. "For us to go back and say it displaced our normal control and command authority is just wrong." Mr. Kaye now heads the international human-rights program at the UCLA School of Law.

A Justice Department spokesman declined to comment beyond the government's legal papers.

More to follow...

This week, MTV aired an hour-long show featuring separate roundtable discussions between Senators Hillary Clinton and Barack Obama and 8 Iraq / Afghanistan veterans. The discussions covered a wide range of issues, from the war itself to post-deployment mental health care and homelessness among veterans.



According to an article in the Lancaster New Era, the Clinton roundtable "was not all about hugs and cheers and photo ops with supporters" — as illustrated by this exchange over the issue of veteran homelessness:

Another veteran, 28-year-old Herold Noel of New York, reminded Clinton that he visited her office in 2005 and talked to her about the problem of homeless veterans. "What did you do since 2005?" he asked.

Clinton said she worked with veterans groups to help some veterans find homes, but blamed bureaucratic red tape for not getting housing for more. Noel responded: "To me, it sounds like you're putting the blame on other things ... You, as the senator of New York, what did you do?"

Clinton responded, "I'm not making excuses. I'm saying there are all these roadblocks." She said he would fight for more money for facilities for veterans. "When we pull out of Iraq, we'll no longer be spending 10 to 12 billion dollars a month there."

Uh huh. All these roadblocks. That's a short step from "mistakes were made" or some other passive statement that places the blame somewhere else. In this case, a constituent came to Sen. Clinton and personally asked for her assistance. She promised him she would do something. But at the end of the day, she accomplished little — and chose to blame the bureaucracy.

In my opinion, this goes to the heart of the Commander-in-Chief issue. The candidate who is ready to be president on Day 1 is the candidate who understands the burden of leadership, and the sacred trust that we owe to our sons and daughters whom we send into harm's way — and who has fought more effectively than any other senator for more VA funding, programs to combat homelessness among vets, more research for PTSD and TBI, more mental health professionals, a better GI Bill, and a way to reduce the VA claims backlog. That candidate is Barack Obama.

These roundtable discussions show why Sen. Obama is the leading candidate among military voters and veterans — particularly Iraq and Afghanistan veterans. He has the strategic judgment we want to see in our Commander-in-Chief. He understands the solemn duty of the president to lead America's military, and to look after the men and women whom he sends into harm's way. He understands that the way we treat this generation of veterans will resonate for future generations. And, of all the candidates running, he has done more to demonstrate that through his work in the Illinois legislature and U.S. Senate on behalf of veterans.

Today marks the 5th anniversary of the day that U.S. and allied military forces invaded Iraq. The invasion has had profound consequences for all involved, and I think it's safe to say at this point that the ultimate outcome remains in doubt. To mark the occasion, Slate commissioned essays from a number of "liberal hawks" who supported the war initially, including writer Chris Hitchens, Iraqi exile and intellectual Kanan Makiya, columnist Fred Kaplan, and others. I have a short piece in this collection too, which concludes:

. . . Now, five years into the war, I remain torn between my initial support for the invasion, my frustrating experience as an Army officer on the ground, and my skepticism that we can build a viable Iraq. Security has improved, although it's not clear who or what deserves credit. The current reduction in violence has made the prospect of a stable Iraq seem possible, if not necessarily probable, because of the Iraqi government's continuing intransigence. But even if we had the patience and will to stay in Iraq for a generation (and I doubt we have either), I think the time has come to leave. The challenge will be to withdraw more responsibly than we went in.

Update I: My colleagues at the Small Wars Journal blog note a surge in anniversary-related commentary this week, including a number of pieces today.

Update II: The New York Times' Baghdad Bureau blog contains a number of excellent notes on this anniversary of the war's start.

Update III: Be sure to check out David Botti's new blog Soldier's Home on the Newsweek website -- especially his diary entries from March 2003, which he wrote while in Kuwait and Iraq.

All this week on the Los Angeles Times' website, I'll be discussing defense policy issues with Larry Korb of the Center for American Progres. In the first installment of the series, Larry and I tackle Congress' role in the war. Not surprisingly, both of us give failing grades to Congress, although for somewhat different reasons. I conclude that Congress has provided oversight in a few areas -- but it's failed to reach the ultimate questions, and thus failed in its basic Constitutional duty to represent the people on questions of war and peace:

. . . Congress authorized the wars in Iraq and Afghanistan as if it were signing a blank check. It continues to fund the war with irresponsible supplemental appropriations bills pushed by the White House. Nearly all legislative activity now assumes the status quo and concedes power over the ultimate question (whether to wage war or not) to the president, as if the original authorizing acts were irrevocable grants of permanent war power. To be fair, the two armed services committees have conducted exhaustive oversight of how the armed forces are fighting, what they need to fight better and when certain objectives will be met. These issues will likely be the focus next month of Army Gen. David H. Petraeus' report to Congress on Iraq. But these are all lesser issues -- they miss the fundamental question of whether the nation should be fighting at all. If Congress never asks that question, then we the people will never get a say in answering it.

So why doesn't Congress do more? I think it has much to do with the fact that America isn't really at war; only its military is. Fewer than 1% of Americans serve today in uniform. Our military (including the reserves) increasingly makes up a discrete and insular caste, separate from the rest of civil society. Military families don't form a coherent constituency capable of pushing Congress on this issue. (The Walter Reed Army Medical Center story was an exception, but it took a front-page series in the Washington Post to focus American attention on years of neglect and underfunding at veteran and military hospitals.) And, regardless of what they tell pollsters, I don't think Americans care enough about this war to push Congress on it, maybe because it doesn't affect them in any meaningful way.

In the final analysis, congressional action does little to affect the actual course of the war. All of the hearings, legislation, oversight requests and public advocacy work on the margins, like very small rudders attempting to steer a very large ship. Meanwhile, the wars in Iraq and Afghanistan grind on, with the White House pursuing whatever course it chooses nearly unfettered by any democratic constraints. We need more from Congress, and not just more of the same. Congress must use its fundamental powers to decide the big strategic questions -- Should we fight? Why? At what cost? -- and opt for war only if the nation is ready and willing to undertake that commitment. Americans shouldn't have to wait every four years for a presidential election to get a say on questions of war and peace.

Read the rest here.

This morning, Slate launched its new legal site "Convictions" -- a group blog featuring 20 of America's leading legal scholars, practitioners and public intellectuals. As editor for this blog, my goal is to make it the online destination for smart legal commentary and conversation -- whether the subject du jour is the big 2nd Amendment case before the Supreme Court, the latest celebrity trial in Los Angeles, or the Scruggs plea agreement in Oxford, Miss. We've recruited an A-list team of contributors to make Convictions interesting and provocative, including such legal rockstars as Rosa Brooks, Tim Wu, Walter Dellinger, Doug Kmiec, Diane Amann, Eric Posner, Dawn Johnsen, David Barron, Jack Balkin, Marty Lederman, Kenji Yoshino, and many others. We'll also be having guest contributors join us from time to time, as well as commentary from Slate's senior editors Dahlia Lithwick and Emily Bazelon.

I hope you'll add Convictions to your reading lists -- and look forward to you joining our online conversation.

Most of Intel Dump's readers probably know about AFRICOM — the new combatant command stood up by the Department of Defense to command, control and coordinate U.S. military forces' work on the African continent. The new command has been criticized for its decision to locate its headquarters in Germany, vice Africa, and its existence has been questioned by many in Africa as a sign of U.S. neo-colonial ambitions. Nonetheless, AFRICOM is moving forward with an ambitious agenda of military assistance, humanitarian assistance, military partnership and capacity building.

But seriously folks — you might want to rethink the AFRICOM insignia (pictured right).

I mean, I understand that you're trying to convey a kinder, gentler, softer approach for AFRICOM. Certainly you want to set it apart from CENTCOM — its hyper-masculine testosterone-chuggin' cousin in Tampa. But...umm... how do I say this: do you think this logo really conveys the right image and brand for AFRICOM? Does it remind you of anything, say, anatomical?

I'm just sayin'...

I agree with Yale law professor Jack Balkin -- we live today in a national surveillance state. This article in the Washington Post detailing the FBI's use of "national security letters" (NSLs) tells an important part of that story. According to the Post:

The FBI has increasingly used administrative orders to obtain the personal records of U.S. citizens rather than foreigners implicated in terrorism or counterintelligence investigations, and at least once it relied on such orders to obtain records that a special intelligence-gathering court had deemed protected by the First Amendment, according to two government audits released yesterday.

The episode was outlined in a Justice Department report that concluded the FBI had abused its intelligence-gathering privileges by issuing inadequately documented "national security letters" from 2003 to 2006, after which changes were put in place that the report called sound.

A report a year ago by the Justice Department's inspector general disclosed that abuses involving national security letters had occurred from 2003 through 2005 and helped provoke the changes. But the report makes it clear that the abuses persisted in 2006 and disclosed that 60 percent of the nearly 50,000 security letters issued that year by the FBI targeted Americans.

Because U.S. citizens enjoy constitutional protections against unreasonable searches and seizures, judicial warrants are ordinarily required for government surveillance. But national security letters are approved only by FBI officials and are not subject to judicial approval; they routinely demand certain types of personal data, such as telephone, e-mail and financial records, while barring the recipient from disclosing that the information was requested or supplied.

According to the findings by Justice Department Inspector General Glenn A. Fine, the FBI tried to work around the Foreign Intelligence Surveillance Court, which oversees clandestine spying in the United States, after it twice rejected an FBI request in 2006 to obtain certain records. The court had concluded "the 'facts' were too thin" and the "request implicated the target's First Amendment rights," the report said.

But the FBI went ahead and got the records anyway by using a national security letter. The FBI's general counsel, Valerie E. Caproni, told investigators it was appropriate to issue the letters in such cases because she disagreed with the court's conclusions.

My thoughts: For reasons of convenience, expediency, secrecy and efficiency, federal law enforcememnt has increasingly turned towards surveillance and investigative methods which do not require ex ante review or approval by an Article III court. These letters raise very significant concerns, as do the other expansions of law enforcement surveillance authority over the lsat 20 years. If you still think you've got a reasonable expectation of privacy in your daily life -- check again. The exceptions very nearly swallow the rule today.

Is this a problem? Depends on your perspective. What worries me here is the slow bureaucratic expansion of power -- like the ever-expanding Blob of movie fame. The FBI and intelligence community may need administrative tools like this. Ultimately, we may decide it's in our interest to allow law enforcement the use of these tools -- whether for targeting suspected terrorists, drug dealers, organized crime figures, or even Client No. 9. But that's got to be a public debate, and it's got to be a debate held by accountable officials, not agency officials behind closed doors. We have a stake in this policy, and we should get a say.