Thursday, February 13, 2003

Can the President wage war on Iraq?

The latest skirmish: a civil lawsuit to enjoin the Bush Administration from war

In Massachusetts, 12 plaintiffs filed suit today in federal court seeking to enjoin President George Bush and Defense Secretary Donald Rumsfeld from waging war on Iraq without an explicit declaration of war from Congress. The plaintiffs include members of Congress (John Conyers, Jesse Jackson Jr., Dennis Kucinich, Jim McDermott, Jose Serrano), as well as ordinary citizens affected by the war -- including active and reserve military personnel.

"A coalition of plaintiffs... hereby bring this action challenging, under Article I, § 8 of the United States Constitution, the authority of Defendant President George W. Bush and Defendant Secretary of Defense Donald H. Rumsfeld (hereinafter "Defendants") to wage war against Iraq, absent a clear declaration of war by the United States Congress."

The parties have also requested an expedited hearing for their case, given that the President has said it will be "weeks not months" before he conducts decisive action against Iraq.

"... Each of the Plaintiffs faces imminent harm from the war threatened by the Defendants. The Plaintiff service people have the most to lose - their lives and limbs - in an illegal war. The Plaintiff parents risk the loss or injury of their children in the service when an undeclared war commences. The Plaintiff Congressional Representatives are threatened with losing their constitutional right and authority to be the decision makers, representing their constituencies, as to whether the United States will enter a war with Iraq. The Plaintiffs meet the standards for issuance of a preliminary injunction, as the accompanying memorandum of law demonstrates."

Analysis: Of course, this is a political tactic. It's an ironic twist on Clausewitz, who wrote that war is a continuation of politics by other means. Here, you have a situation where law is a continuation of politics by other means. (This begs the question: is law really a form of warfare?) Congress has taken up this issue, and to the chagrin of these anti-war activists, passed a Joint Resolution authorizing the use of force in Iraq to enforce UN Security Council resolutions. Congress has also passed a resolution to authorize the use of force in America's war on terrorism.

The courts have never -- and probably will never -- hold that the President needs an explicit declaration of war before committing US troops abroad. That would unconstitutionally infringe on his power as Commander in Chief of the military. In several wartime cases, the Supreme Court has held that Presidential decisions to commit troops to combat without such a declaration have been lawful. There's no reason why they would change that holding in this case. (But see, plaintiffs' memorandum of law in support of their arguments) Unless this suit finds a very receptive federal judge, it will die in U.S. District Court. And even if it proceeds, it will not succeed.

Update: The AP reports that "There has been no response yet from the Bush administration. The lawsuit seeks a preliminary injunction and an expedited hearing. An expedited hearing was granted, and a federal judge will hear the case next Thursday."
Human shields cling to bridge in Baghdad

If the U.S. bombs the bridge and kills them, is it a war crime?

The Associated Press reports that 14 peace activists from several different nations have reached Baghdad after a lengthy tour of Europe via double-decker bus. The group almost didn't make it, and their leader (former US marine Ken Nichols) was deported by Turkey before reaching Iraq. After days of speculation over whether the U.S. would stop this traveling circus, the peaceniks have reached their destination. Now that they're there, they have "wrapped their arms around posts on a bridge over the Tigris River on Thursday, symbolizing their intent to act as human shields in any U.S. war on Iraq."

The 14 activists, mostly from Italy, were one of the first groups here using the "shield" title, which suggests they might place their bodies at potential targets to deter bombing. But they acknowledged their mission is only a gesture meant to try to deter an invasion to topple Saddam Hussein. "I have no intention of being a martyr," Canadian Roberta Taman said. "I'm here because I believe that the world wants peace and that we can achieve peace."

The campaigners, organized as the Iraq Peace Team, have been draping banners over public facilities in Baghdad this week - an electricity station, a water treatment plant and, on Thursday, the Martyrs Bridge over the Tigris. "Bombing This site Is A War Crime," the banners read.

Is that right? Would it be a war crime for the U.S. to hit the bridge over the Tigris?

The answer is not as clear cut as either the activists -- or the Pentagon -- would like.

1. The first issue is whether the larger war itself would be lawful. Lawful acts of combat in the context of an unlawful war would obviously not be lawful. The U.S. reads existing UN Security Council resolutions to already give the U.S. the authority to attack Iraq, notwithstanding the Security Council's current hesitation to authorize any action. These resolutions, including several passed in 1990-91 in the First Gulf War, are so-called "Chapter VII" resolutions of the UN Security Council which authorize military force for implementation. However, the French and German view is that these resolutions do not suffice to create international authorization for a war, and that a US-led war without explicit (and new) UN authorization would be unlawful. This is a dramatic oversimplication, but you get the idea. The very lawfulness of any US action in Iraq might be questioned.

2. Commanders have a duty to observe two principles of the law of war which are relevant here. The first is "distinction", which means the distinction between military and civilian targets. Commanders are required to take all practical measures to hit military targets and to not hit civilian targets. Deliberately targeting civilians is illegal under the laws of war, and intentional (or negligent) collateral damage may be as well. The second principle is "proportionality." Military commanders should use the amount of force necessary to accomplish the mission and defend friendly forces -- but not more.

- Is the bridge a lawful military target? If Iraqi troops or military/strategic assets use it, the answer is pretty easily yes. If it's used for logistical or infrastructural supply of Iraqi troops, the answer could still be yes. If yes, then the bridge can be hit.

- If the bridge can be hit, what about the known existence of civilians at that site? Here it becomes tricky. In theory, commanders are to avoid intentionally or negligently causing civilian casualties. However, "human shields" would create an easy way for despots to make their adversaries commit war crimes. So international law deals with this by putting the blame to the side that uses human shields. If Iraq condones or allows these persons to be human shields, then Iraq accepts the blame (and legal liability in a war-crimes tribunal) for their deaths. In the first Gulf War, Iraq used human shields quite extensively. The U.S. knew about them, and bombed some of those sites anyway because the military value of those targets outweighed the collateral damage. Nonetheless, the legal and moral responsibility for those deaths lay with Saddam Hussein.

- Are there any 'proportionality' issues here? Probably not. Assuming the bridge is a lawful military target (and critical infrastructure usually is), the U.S. can use the appropriate bomb to bring it down. I'm no expert on air-dropped munitions, but I suspect that means a precision-guided munition of some kind that can hit the bridge and bring it down with one or two bombs. Such a weapon would kill whoever was on the bridge, and probably hurt/kill anyone with their arms wrapped around it too. There isn't a way to accomplish this legitimate military end (blowing the bridge) without causing casualties in the immediate vicinity. The absence of any viable/practical alternative means to cause that end means this would almost certainly be a proportional strike.

3. The peace activists themselves may be relieving both the Americans and the Iraqis here of any legal liability by their actions. In American law, this doctrine is called "assumption of risk." It requires two elements: 1) that the victim know about the risk and 2) that the victim voluntarily assume that risk as an act of free will. The actions of these activists argue strongly that they have assumed the risk of being killed by American ordnance. Such an event would be tragic. But the U.S. cannot be held liable for this, and military lawyers advising Gen. Tommy Franks know this. It's unlikely this human-shield effort will have any effect whatsoever -- except to cause more suffering for the families of these activists if they are hurt or killed.
Bush Administration sends war plan back to planners for revision

Plan failed to minimize civilian casualties; set conditions for American occupation

Today's Washington Times reports that the White House has turned down an initial plan for the air war in Iraq. Why? As written, the plan would have targeted parts of the Iraqi civilian infrastructure and other things which would inflict too much harm on the Iraqi people. This, in turn, would cause tremendous civil-military problems for the U.S. in the post-war occupation phase, giving Iraqi civilians more reason to resent the U.S. instead of seeing the U.S. as its liberator.

The Bush administration's desire to spare dual military-civilian targets in Iraq has produced an air war plan that is too timid and does not properly prepare the battle space for ground troops, according to interviews with military officers.
* * *
The officers said the plan, as of a few weeks ago, would largely spare infrastructure targets, such as bridges, and most, if not all, telephone communications.

The officers said the plan deviates in significant ways from the 1991 38-day air campaign during Operation Desert Storm, in which telephone communications, power systems and bridges were targeted from the first day to isolate Saddam Hussein and his military forces.

The reason for the change: The Bush administration wants to spare hardships to Iraqi civilians and to show that the real target of the bombing campaign is Saddam.

It hopes that Iraqi citizens, in return, accept U.S. military rule during an interim period leading to the establishment of a democratic government. Bush officials also want, to the extent possible, to avoid civilian casualties.

Analysis: This story illustrates just how far the U.S. is willing to go to scrupulously observe the laws of war, and to minimize civilian death and suffering in war. No nation in history does more than the United States to observe the laws of war in combat. Our military fights under strict rules of engagement, in extremely focused way. We attach lawyers to every level of command down to the regiment/brigade -- these attorneys advise commanders on how to fight lawfully. We train our soldiers in detail on the laws of war before deployment so they'll know the right thing to do. Our military has the technology to distinguish between military and civilian targets, and to focus our combat power very tightly on those military targets. Finally, we have CNN to keep us honest; any mistakes will be instantly and graphically reported to the world, and our civilian/military leaders will be held accountable for those acts.
WP: U.S. special operations forces enter Iraq

Tom Ricks, perhaps the best military reporter around, reports in this morning's Washington Post that American Special Forces teams have entered Iraq to conduct long-range reconnaissance and direct action in preparation for a U.S. led campaign.

The troops, comprising two Special Operations Task Forces with an undetermined number of personnel, have been in and out of Iraq for well over a month, said two military officials with direct knowledge of their activities. They are laying the groundwork for conventional U.S. forces that could quickly seize large portions of Iraq if President Bush gives a formal order to go to war, the officials said.

The ground operation points to a Pentagon war plan that is shaping up to be dramatically different than the one carried out by the United States and its allies in the 1991 Persian Gulf War. Instead of beginning with a massive aerial bombardment, the plan envisions a series of preliminary ground actions to seize Iraqi territory and effectively encircle Baghdad before a large-scale air campaign hits the capital, defense officials and analysts said.

"It's possible that ground movements could come in and occupy large portions of Iraq almost unimpeded," said one person familiar with Pentagon planning. In northern Iraq, the source said, "we might get to the outskirts of Tikrit without firing a shot." Tikrit, a city north of Baghdad, is Iraqi President Saddam Hussein's ancestral home and a major base of his power.

Analysis: Ricks has extremely good sources, and I can't think of a reason why he got this story wrong. This strategy also matches U.S. doctrine, which makes it more likely that it's true. Before any war, you want to do as much as possible to get accurate, on-the-ground, eyes-on intelligence about the enemy. Special Forces teams are uniquely suited to do this mission, given their extensive training, experience and maturity from multiple deployments, language skills, ability to be covert, and skill with using sophisticated electronic surveillance and communications gear.

What does this mean for the larger question -- are we going to war? I think the answer has always been yes, but now that war is more imminent. The Pentagon would not commit these American soldiers if it did not see action in a relatively short amount of time. Committing any ground troops entails substantial risk, and my gut insticts tell me the U.S. would not do this unless it planned a war within months.

Wednesday, February 12, 2003

More on smallpox vaccine controversy

UCLA Professor Mark Kleiman has some interesting thoughts today on this weblog regarding the smallpox-vaccine controversy. Mark's one of the smartest policy guys I've met in my (short) lifetime, and he's especially good at assessing the cost/benefit calculus of a particular policy to decide whether it's rational or not. One of his arguments really struck a chord with me:

Part of the problem seems to be that workers who have reactions to the shots severe enough to keep them out of work for a while would have to rely on the notoriously inadequate worker's compensation system to cover their health care costs and lost earnings. (Perhaps if their lobbyists had been somewhat more generous to Republican campaign funds, someone in the Administration would have considered their interests before proposing a plan affecting their interests.) Now you might say -- the editors of the Wall Street Journal do say, in an editorial dated (11 Feb 03) -- that the country needs to have these people vaccinated, and that they ought to be patriotic enough to do the right thing. But on the other hand you might say that if the country needs them vaccinated, then the country damned well ought to pay the full cost of the vaccination, rather than leaving the risk on people few of whom are rich enough to benefit from a cut in dividend taxation.
* * *
Even that won't do the job entirely. The California Nurses' Association, for example, is resisting the vaccinations at least in part because it opposes the Administration's plan to invade Iraq. That strikes me as an intolerable mixing of roles; the CNA ought to defend its members' interests, and is free to express its political opinions, but nobody put them in charge of foreign policy. But I doubt that ideological nonsense of that sort is a major problem here. The problem is a plan that may be poorly conceived and has certainly been poorly explained, combined with a failure to consult the opinions, or consider the interests, of the heath care workers that they and their representatives could reasonably interpret as an expression of contempt."

Agreed. This is a problem I detect in a lot of the anti-war/anti-Bush/anti-vaccine/anti-whatever groups. They meld the causes when the causes don't exactly lend themselves to it. The California Nurses Assoc. and California Medical Assoc. are on solid ground if they oppose the vaccines on medical grounds, on workers-comp grounds, and possibly even on personal-autonomy grounds. But when the CMA and CNA oppose such policies on illogical grounds, or patently political grounds, they spend their political capital in a way that does nothing for their constituency or the people of California. They have a good argument -- the Bush Administration needs to do more to justify mass smallpox vaccinations. That may entail scaring people with scenarios like that from Dark Winter. But that's what policy leadership means -- explaining to people the why behind what they're being asked to do. Units Headed to Gulf Lack Proper Chemical-Warfare Training

Tony Capaccio reported on yesterday's Bloomberg news wire that U.S. Army units headed towards the Gulf had not completed all of their required "NBC" training. (NBC = nuclear, biological and chemical) In an internal audit of training records, the Army Audit Agency found that several units, including the Army's 4th Infantry Division (in which I served from 1999-2001) failed to train on a number of critical NBC tasks with the required frequency and intensity, including:
- Wear, maintenance and exchange of "Mission Oriented Protective Posture" chemical-protective gear
- Maintenance of various pieces of chemical-warfare equipment, such as nerve-agent detectors
- Firing the M4 and M16 rifle while wearing the MOPP suit and protective mask
- Use of chemical-defense equipment like the M8 alarm and CAM (Chemical Agent Monitor)

Army auditors randomly examined 25 units at Fort Lewis, Washington, and Fort Hood, Texas, headquarters of the U.S. I Corps and III Corps, respectively. The Fort Hood units included the 4th Infantry Division and 13th Corps Support Command, which are deploying to the Gulf region.

"Units generally did not have effective chemical defense programs," the Army Audit Agency said in a 50-page report obtained by Bloomberg News. "Our review showed that unit commanders aren't making nuclear, biological and chemical training a priority," the audit said.

* * *
The audit found that soldiers in 18 of the 25 units reviewed at Fort Hood and Fort Lewis "weren't proficient in operating chemical and biological defense equipment."

"With the exception of masks, soldiers couldn't effectively operate basic chemical defense equipment," the report found.

That's in part because chemical specialists assigned to combat units "didn't have the level of expertise necessary to train other soldiers in the proper operation of chemical and biological defense equipment," the audit said.

Nearly one-fourth of 380 standard-issue gas masks, chemical agent alarms and decontamination devices had defects or were otherwise not unusable because specialists "didn't make sure soldiers either performed operator preventive maintenance checks and services or properly completed the services," it said.

Some Fort Hood and Fort Lewis units that were graded as having a high readiness level "didn't ensure solders received chemical and biological defense training" to make them capable of firing weapons while in protective gear, the audit said.

Soldiers in 18 of the 25 units "didn't meet the weapons qualification standard," it said.

Analysis: This is very disturbing news, though it's not surprising to me as an officer who served in the 4th Infantry Division at Fort Hood. NBC training is tough, messy, difficult training, and it's not the kind of thing you want to do in the Texas heat. That said, it was our job as leaders to train our soldiers to standards. Good leadership isn't about pandering to your troops and going easy on them -- it's about training them to standard so they come alive from combat. Sadly, many Army units suffer from weak leadership. At Fort Hood, this came from the top down. The Fort Hood commander created a general climate of coddling for soldiers. In trying to strike a balance between quality of life and combat readiness, he erred way too far on the side of quality of life. Junior leaders had to seek a general's permission to train at nights or on weekends; training resources were tightly managed so leaders had difficulty getting bullets, fuel, spare parts, etc., to train.

That said, some units overcome those obstacles to do the right thing and train their soldiers. In the 4th Military Police Company, we trained often on this task and embedded NBC training into every training event -- even gunnery. I vividly remember shooting Scout Gunnery in August 1999 while wearing my full MOPP suit and ProMask, and losing 10 pounds in one week. (That was a hot week) As MPs, we would play a key role in working with Chemical units to mark and seal off contaminated areas, and also to direct contaminated units to decontamination sites. So we trained hard on this, because we knew it meant our lives in combat. And as leaders, we enforced standards ruthlessly. For me personally, a lot of that owed to my experience in Korea with the 2nd Infantry Division, where I lived for a year with the constant threat of chemical-tipped artillery.

However, the 4th Infantry Division faced two further challenges:
1) 4ID was in the process of digitization during this time period, and consumed by several major exercises at the same time. There is a finite amount of training time available to any commander -- even those who push the envelope. We pushed as much training in as possible, but we were never really able to train on anything 100%. Instead, we would multi-task a lot, such as embedding NBC training in our convoy-defense training.
2) Fort Hood and the Army had an extreme shortage of chemical officers and sergeants to manage this training in their units. Much of this owed to a failure to recruit/train/retain quality junior officers, with an acute shortage in the Chemical Corps branch. The same problem existed for enlisted personnel. This meant that a lot of units had no "subject matter expert" they could use to plan/manage/supervise this training.
House-Senate Conference Committee Agrees to Limit Pentagon TIA Project

Today's New York Times reports that a House-Senate conference committee agreed to a legislative amendment that would forbid the Pentagon from pursuing its Total Information Awareness project without further consultation with Congress. News of this project leaked late last year, and stirred great controversy on both sides of the aisle among those who feared it might lead to constant/total surveillance of the American population by the Department of Defense.

The negotiators' decision meant almost complete failure for a last-minute Pentagon effort, begun Friday, to protect the program from the Wyden amendment by establishing advisory committees to oversee the program.

The total information concept would enable a team of intelligence analysts to gather and view information from databases, pursue links between individuals and groups, respond to automatic alerts, and share information, all from their individual computers. It could link such different electronic sources as video feeds from airport surveillance cameras, credit card transactions, airline reservations and records of telephone calls. The data would be filtered through software that would constantly seek suspicious patterns. The Defense Department had already begun to discuss the use of the system with the F.B.I. and perhaps other agencies. Now, without a new law specifically authorizing its use and a new, specific appropriation to pay for it, the program could not be used against United States citizens. But it could be employed in support of lawful military operations outside the United States and lawful foreign intelligence operations conducted wholly against non-United States citizens.

The negotiators did agree to extend from 60 to 90 days the time the Defense Department would have to provide a detailed report to Congress, including its costs, goals, impact on privacy and civil liberties and prospects for successes against terrorists. Unless that report was filed, all further research on the project would have to stop immediately. But President Bush could keep the research alive by certifying to Congress that a halt "would endanger the national security of the United States."

Analysis: Adam Clymer's a very experienced reporter, and one of the NY Times' all-stars. But in this case, I think he's completely misreading the legislation. I'm very familiar with "reporting requirements," as these things are known. Title 10 of the U.S. Code is full of them. The Pentagon is required to report to Congress on a wide variety of things, from progress on hiring minorities to the details of military research. In many cases, those requirements are worded to say that the Pentagon may not do something until it reports to Congress, like this TIA reporting requirement. Ultimately, that does not prevent the Pentagon from acting. It merely adds a layer of legislative oversight to the process -- something our Constitution explicitly delegates to Congress in Art. I.

This reporting requirement will not stop TIA from moving forward, nor will it stop the Pentagon and other federal agencies from pursuing similar policies. What it will require is for them to 1) develop mitigation plans for managing the programs' effects on civil liberities, and 2) report to Congress in detail on those plans.

Tuesday, February 11, 2003

Has the Gulf War ever really ended?

America has been continuously conducting combat missions over Iraq for 12 years

The Associated Press reports that American aircraft have bombed a surface-to-surface missile site near Basra in Southern Iraq. This system had the potential to launch Ababil missiles over the border into Kuwait, where thousands of U.S. troops now mass in preparation for war.

The U.S. pilots attacked the Iraqi missile system near the southern city of Basra at about 1700 GMT Tuesday, according to a statement from the U.S. Central Command. The statement said the Iraqis had moved the missile system into the southern no-fly zone.
* * *
Eight U.S. warplanes dropped a total of 16 bombs on the Iraqi missile system near Basra Tuesday, Pentagon officials said, speaking on condition of anonymity.

The U.S. bombs struck an Iraqi Ababil-100 missile launcher, a command van and resupply vehicles, senior defense officials said.

The Ababil is a solid-fueled missile developed after the 1991 Gulf War. Iraq says it doesn't fly farther than the 93-mile limit on Iraqi missiles imposed by U.N. sanctions. The U.S. and the U.K. say the Ababil probably either has a longer range or could easily be modified to fly farther. U.S. officials say the Ababil also can be used to carry chemical or biological warheads.

All of this begs the question: have we ever stopped bombing Iraq? The answer is no. Since 1991, American aircraft have continuously flown combat missions over Iraq. These include Operation Southern Watch and Operation Northern Watch, which enforced no-fly zones in the south and north respectively. U.S. aircraft have also flown other missions over Iraq, including surveillance and other flights. We have bombed Iraq steadily over the last 12 years. Arguably, we have remained in a steady (albeit low) state of war with Iraq for 12 years.

This raises another question: how will we know when we start the second Gulf War? In theory, we should see a marked increase in the number of sorties and the amount of ordnance dropped, or perhaps in the type of targets which are hit. But that may or may not happen. It's conceivable that we will slowly ratchet up the U.S. air campaign from its current state to catch the Iraqis off guard, and to destroy certain critical sites (e.g. air-defense assets) before the "real" air campaign starts. It's also conceivable that we might use the cover of these current missions to insert Special Forces and other forces on the ground.
Congress is the Culprit: Why USAA cares about the USA PATRIOT Act

I did some quick research into why USAA gave me an alarming message (see below) after I submitted my application for a Roth IRA. It appears that Sec. 326 of the USA PATRIOT Act (Public Law 107-56) directs the Secretary of the Treasury develop regulations requiring ID verification for anyone opening any bank account in the US. Presumably, this is to prevent people from opening sham accounts for illicit purposes, such as to funnel money to terrorist organizations.


(a) IN GENERAL- Section 5318 of title 31, United States Code, as amended by this title, is amended by adding at the end the following:


(1) IN GENERAL- Subject to the requirements of this subsection, the Secretary of the Treasury shall prescribe regulations setting forth the minimum standards for financial institutions and their customers regarding the identity of the customer that shall apply in connection with the opening of an account at a financial institution.

(2) MINIMUM REQUIREMENTS- The regulations shall, at a minimum, require financial institutions to implement, and customers (after being given adequate notice) to comply with, reasonable procedures for--
`(A) verifying the identity of any person seeking to open an account to the extent reasonable and practicable;
`(B) maintaining records of the information used to verify a person's identity, including name, address, and other identifying information; and
`(C) consulting lists of known or suspected terrorists or terrorist organizations provided to the financial institution by any government agency to determine whether a person seeking to open an account appears on any such list.
* * *
FBI/CIA: Al Qaeda still a major threat

Testifying before Congress today, FBI Director Robert Mueller and CIA Director George Tenet told the nation that Al Qaeda still represented a viable and dangerous threat to American citizens at home and abroad. Together, they painted a devastating series of pictures of possible terrorist action in the United States. Both predicted that terrorists would use weapons of mass destruction in their future attacks, and that they would attack "soft targets" in addition to traditional "hard targets" like political buildings.

"The network is extensive and adaptable,"Tenet said. "It will take years of determined effort to unravel this and other terrorist networks and stamp them out."

"The enemies we face are resourceful, merciless and fanatically committed to inflicting massive damage on our homeland, which they regard as a bastion of evil," Mueller said. "In this war, there can be no compromise or negotiated settlement."
USA PATRIOT Act and Roth IRAs???

I'm opening a Roth IRA this morning so that I can start squirreling away money for my old age. While opening this account online with USAA (who I use for all my financial business), I got the following notice:

The USA PATRIOT Act requires verification of identity. Therefore, please provide the information requested. Omissions or an inability to verify this information may cause a processing delay.

Now I'm really, really curious. I know the USA PATRIOT Act contained some provisions related to financial crime and terrorism, but I'm extremely curious as to how that requires verification from persons opening a Roth IRA account. More to follow...
NYT: US Military Ready to Provide Aid to Iraqi Civilians

Defense reporters Eric Schmitt and Thom Shanker report today that the Pentagon has a plan for pushing large amounts of humanitarian aid, medical aid, and relief supplies to Iraqi civilians in the event of a war. This news comes out of an exclusive interview with CENTCOM Commander Tommy Franks, in which the general indicated the U.S. had prepared a plan for dealing with Iraqi humanitarian needs. Franks and others say this plan includes several million meals which would be delivered to Iraqi civilians in the event of any armed conflict.

"Humanitarian supplies are being positioned in order to address this sort of an issue," General Franks said, noting that one of the factors driving the shape and size of his forces was the need to deal with aid to the Iraqi people. In some cases, the military will provide leadership and some suggestions, and in other cases the military will offer its help coordinating the work of other organizations. General Franks made clear that his command had not convened any type of general session involving the major aid groups.

This is an extremely important play by the United States. I think this is part of the US plan to mitigate the risks of civilian casualties and humanitarian disaster, which would have an enormous impact on popular (domestic and international) support for the war. In war, it's always important to seize the moral high ground as well as the tactical high ground.

One way this could play out is in any urban campaign. If the U.S. were planning to enter Baghdad, they might use such a strategy to lure as many civilians as possible out of the city with humanitarian aid first. You just couldn't find through a populated Baghdad; it'd be enormously difficult and costly in blood. But if you could use humanitarian aid to lure civilians out of cities - or even out of Iraq - you could have a much freer hand when it came to targeting Iraqi forces. This would also have the tangential benefit of reducing the will to fight among Iraqi forces. I think it's likely such a move would provoke mass desertions among the rank and file of the Iraqi army. Once these soldiers learned that their families had fled Baghdad, and that there was food/water/medical aid available, they might desert in large numbers like in the first Gulf War.

The U.S. military does more than any other nation in history to protect the lives of civilians and distinguish between civilian and military targets. It attaches lawyers down to the lowest levels of command to advise leaders on the law of war; it employs sophisticated technology and tactics to minimize collateral damage with all weapons systems. This another development in that tradition, and I'm not surprised by it. Civil-military operations are integrated into plans at every level, and considering how vital the Iraqi population is to this campaign's success/failure, it's only natural that our Iraq plans would include such a robust plan for addressing the needs of Iraqi civilians.
ABA Adopts Report on Enemy Combatants

Yesterday, the members of the American Bar Association voted 368-76 to approve a panel report on the Treatment of Enemy Combatants. This is the latest in a long line of reports, white papers and recommendations from the ABA to give Constitutional protections to the U.S. citizens and non-citizens captured in America's war on terrorism. Predictably, this report criticizes the Administration for its decisions so far in the Hamdi and Padilla cases, as well as in the treatment of the 600+ prisoners at Guantanamo Bay.

I've scanned the report and will dissect it later as I have time. But I have some initial thoughts on this latest statement from the ABA:

1. The ABA has convinced itself that this is a problem of law -- not war. That may not be the right answer. Everything in the ABA report is predicated on the assumption that this is a problem for America's legal system -- with its Constitutional safeguards -- to respond to. But if you question those assumptions, and look at terrorism as a problem of war, many of these arguments don't hold water. If terrorists are criminals, then they ought to be tried in court. But if terrorists are combatants, seeking to wage war on the United States and its allies through unconventional means, then you have an entirely different matter. It may well be that terrorism exists both as a matter of law and war -- or that it exists on the seam of law and war. In any case, I think the ABA is assuming too much here.

2. In several places, the ABA report refers to "international law" as if it was some coherent body that could produce a magical answer. That's not entirely true. International law is typically divided into positive international law (treaties, charters, etc), and customary international law (literally the customs practiced by the collective body of nations). Divining the meaning of international law is really difficult. In this case, it's not entirely clear how international law would treat terrorists. The 3rd Geneva Convention Relative to Treatment of Prisoners of War contains a definition of combatants in Art. 4, however that definition is anachronistic today. It was written after WWII for a style of warfare practiced in WWII, and it does not apply to the 4th Generation Warfare practitioners we face today. The Geneva Convention is the most definitive document in international law for defining combatant status, and even it does not fit this situation clearly. I think it's hard to say exactly what "international law" commands us to do here, and the ABA ought not essentialize this body of law down to a soundbite the way it has.

3. For obvious reasons, the ABA report emphasizes the right of counsel for detained enemy combatants. However, the government has compelling reasons not to allow access to counsel in many cases. In declarations submitted to the Hamdi and Padilla courts, the government argues persuasively that allowing access to counsel would upset the interrogation environment which is so critical for pulling information out of these dangerous men. This information is vital human intelligence which may help prevent future terrorist attacks. If the government were just holding these men without access to counsel for no reason, I think matters might be different. But that's not the case. The government has a legitimate, compelling interest in secluding these men and denying them access to the outside world. That may change at some point, perhaps when the government deems these men to have no further intelligence value. But until then, we owe it to the American citizenry to learn all we can from these terrorists while they are in custody. Allowing access to counsel would only frustrate that goal.

Bottom Line: The ABA is making a political issue out of the treatment of enemy combatants. But in doing so, they are making some extremely shaky arguments that rest on faulty assumptions about international law and 21st Century warfare.
Wall Street Journal: Dark Winter and Smallpox

If you've been reading this 'blog for a while, you might remember in December when I wrote about "Dark Winter". This was an exercise carried out in 2001 to wargame what would happen if terrorists hit the U.S. with smallpox. The results were devastating. Among the lessons learned:

- Leaders are unfamiliar with the character of bioterrorist attacks, available policy options, and their consequences.
- After a bioterrorist attack, leaders' decisions would depend on data and expertise from the medical and public health sectors.
- The lack of sufficient vaccine or drugs to prevent the spread of disease severely limited management options.
- The US health care system lacks the surge capacity to deal with mass casualties.
- To end a disease outbreak after a bioterrorist attack, decision makers will require ongoing expert advice from senior public health and medical leaders.
- Federal and state priorities may be unclear, differ, or conflict; authorities may be uncertain; and constitutional issues may arise.
- The individual actions of US citizens will be critical to ending the spread of contagious disease; leaders must gain the trust and sustained cooperation of the American people.

The Wall Street Journal's editorial board has read these notes, and taken them to heart. Today, the paper's lead editorial argues that exercises like Dark Winter make a compelling case for mass vaccination -- especially of recalcitrant health-care workers who are putting their own personal worries over the larger public good.

The point here isn't to scare people . . . well, maybe it is; 15 months after the anthrax attacks, bioterror is a real threat. Protecting against smallpox in advance may make it less likely that an enemy would resort to its use. Dark Winter also underscores how vulnerable U.S. society will remain even with precautions, meaning that the best homeland defense continues to be taking the battle to terrorists abroad and to the states that harbor them.

As for union objections, the Bush Administration is preparing a compensation fund for anyone injured by the vaccine. But keep in mind that emergency workers already have insurance and worker's comp, and that health-care workers are already exposed to unusual risk of germs and illness as part of their daily lives.

No homeland defense plan will work without the cooperation of all Americans, especially its leading institutions. The unions and public-health officials resisting smallpox vaccination will have a lot to answer for if there is an attack and Americans remain unprepared.

Monday, February 10, 2003

Justice Department wins another round in the fight against terrorism

The Associated Press reports today that Enaam Arnaout pled guilty today in Chicago to one count of giving material support to a terrorist organization in violation of federal law. Aranout was charged with providing various forms of financial, logistical and other support through his charity, Benevolence International Foundation, to terrorist organizations including Al Qaeda.

Arnaout, 41, admitted in court papers that his Benevolence International Foundation had furnished funds to buy boots and uniforms for the Muslim fighting forces while claiming to aid only widows, orphans and the poor.

He did not acknowledge any relationship with bin Laden and his al-Qaida terrorist network. But federal prosecutors said ample evidence remains that Arnaout helped al-Qaida in several ways -- including transferring funds around the world to finance its operations.

He faces a maximum sentence of 20 years in prison, and federal prosecutors said they might ask the judge to give Arnaout a break if he follows through on his promise to cooperate.

Analysis: This is a success story. To stop terrorists like Al Qaeda, we must deny them the ability to fund themselves, move money around the world, and use their financial network to support their terrorist activities. The financial effort is as important as the combat in Afghanistan -- or luggage screening in airports. A friend asked me a few months ago why the U.S. expends so much effort going after men like Mr. Arnaout for supporting terrorism -- financially or otherwise -- instead of going after the actual terrorists like Osama Bin Laden or Ayman Zawahiri. The answer is that these men represent the vulnerable underbelly of international terrorism. Networked, cellular organizations like Al Qaeda cannot exist without their financial and logistical infrastructure. If you destroy their financial infrastructure, you deny Al Qaeda the ability to operate abroad. That operationally neutralizes Al Qaeda.
Predicting casualties in war
-- art, science, or guesswork?

Victor David Hanson, a historian whose books I really liked, has an interesting piece in the National Review on war pessimism. In it, Hanson cautions us to be wary of large casualty estimates, even those produced by the Pentagon. Furthermore, Iraq's military has never fought well, especially against well-equipped and well-trained opponents like the U.S. Indeed, the most viable threat we face is from Saddam's irrational acts like loosing a Scud missile on Saudi Arabia, not from any of his front-line forces.

What can we expect from the possible invasion of Iraq? Everything in war is of course uncertain — an awful time when the lives of thousands of soldiers hang in the balance, and brutal, dirty events can spiral out of control the moment the shooting starts. Yet we should be careful in once more believing the pessimistic commentators in newspaper ads and on television who are now warning of several "hundred thousands" of dead, of chaos, of mass starvation, and of internecine killing.

Oxford student Josh Chafetz notes that short, low-casualty wars have been the norm for the U.S. since Grenada and he doesn't think things are likely to change this time around in Iraq. He goes on to make a larger argument about military planning and casualty estimates that I strongly disagree with:

"The military always tries to figure out the worst case scenario casualty figures, and then opponents of military action jump all over those figures. But that's really stupid -- no one should ever plan anything based simply on the worst case scenario. The only sensible way to plan is based on a calculus: consider each potential outcome, weight it by the likelihood of its actually occurring, and add them. Then do the same on the other side of the balance. If the weighted calculus of casualties is worse than the weighted calculus of not fighting, then don't fight. If vice-versa, then do. Obviously, no one knows what the numbers or weights are -- we can only make guesses, and we can argue about the assumptions underlying those guesses. But it's just plain foolish to pretend that only the worst case scenario should be taken into account. And yet, when people go on TV and say that "tens of thousands of Americans will die in an invasion of Iraq" -- just like they said about Afghanistan and Gulf War I and ... -- that's exactly what they're doing."

I agree there's a political blowback problem here. But I'm not sure many understand the reason why military planners like to consider the worst-case scenario. It's not a prediction of what will happen; it's a prediction of what might happen if everything goes wrong. The intent here is not to scare the commander (or President), but to enable him to assume the risk of the operation knowing the worst-case consequences. When the initial estimates are too risky, the doctrinal response is for a commander to direct certain risk-mitigation measures, such as having all troops wear their chemical gear continuously instead of just upon attack. Thus, the high-risk estimates do serve a purpose in redflagging operations which might be too risky to execute as planned.

It is true that they are seized on by anti-war activists who are looking for one more reason to oppose the war. But there's another reason why you might want these estimates known. If and when actual casualties exceed expectations, the bubble of public support for any military operation will almost certainly burst. We saw this clearly in Somalia. President Bush initially dispatched those troops as humanitarian workers, with promises of zero/few casualties. That held true until President Clinton changed the mission to something more aggressive. When he did that, he never went to the American people to explain this risk, or even inform them of the risk. Thus, when we suffered 18 casualties on 3 Oct 1993, the American public was shocked. Public support for the Somalia mission evaporated, and we redeployed from there without accomplishing our mission.

Unfortunately, it's not as simple as a cost/benefit calculation the way Josh describes it. For one thing, you cannot calculate likelihood with any certainty in war, as you acknowledge. I served as an operational planner in the 4th Infantry Division, with the most sophisticated modeling and planning software you can imagine. Our guesses were only slightly better than a SWAG (sophisticated wild ass guess). The worst-case scenario is not the only estimate driving planning - in fact, it's usually not the main assumption in any plan. But these worst-case estimates remain important for commanders and civilian decision-makers to see. Without knowing the risks, commanders cannot make informed decisions, and may send America's sons and daughters into harm's way without fully acknowledging and accepting the risk of that decision.

Sunday, February 9, 2003

'Prof Quotes'

As a young reporter for the UCLA Daily Bruin, I often had to scramble around at the last minute for a "prof quote". You know 'em -- these are the 1-2 sentences of analysis that most major news stories have about any technical subject, from anthropology to women's rights, to try and explain the subject and make the article seem more informed. Often times, I talked to professors who were experts in only a related field, like a law professor on crime or a medical doctor on a biology topic, because those were the experts who answered the phone. Some professors actually make their careers by being accessible to reporters who need 'prof quotes' -- I know a few who pass their personal cell phone numbers to big-time journalists so they get the call when news breaks. I wish I could say this was a college reporters' practice and that real reporters don't do it, but I can't. Chances are, if you pick up the New York Times, Washington Post or Los Angeles Times on any given day, you'll find dozens of "prof quotes".

You can find some of the most absurd, amusing and bemusing of these at a site called This site contains a wide variety of outtakes from the classroom. Here's a few I liked:

"There are two things you need to be a really good English major. First, a good, working knowledge of the Bible. And second, a really dirty mind."
Prof. Condren, English 10A, UCLA, Los Angeles, CA

"That Y chromosome screws you up, the X chromosome is better -- I can put you in touch with several doctors... "
Mary Lindemann, World History, Carnegie Mellon, Pittsburgh, PA

"If we want to get a consistent answer out of a psycho, then we only ask them once."
Dr. Walters, Complex Analysis, University of Northern British Columbia

"This assumption is actually wrong. It's the basis of everything you learn in this subject. It's wrong, but it makes the math easier."
G. Archer, Structural Analysis, Cal Poly, San Luis Obispo, CA

Saturday, February 8, 2003

USA Patriot Act - Part II

Draft of "Domestic Security Enhancement Act of 2003" Leaked to Public

A draft version of the Domestic Security Enhancement Act was obtained by the Center for Public Integrity and leaked to several media outlets on Friday. (I learned of this from Orin Kerr at the Volokh Conspiracy) This act essentially cleans up a lot of messy areas of the original USA PATRIOT Act (Public Law 107-56), signed into law on 26 Oct 01 by President Bush. This Act goes much further though, taking a number of steps to limit private remedies for anti-terrorism police abuses, and increasing the surveillance authority of government agents. It also contains some pro-civil liberties provisions, such a change to the FISA Court appellate-review process that would add a lawyer to represent the FISA Court in government appeals.

I haven't had time to read the full bill; it's a 12-megabyte file. But my initial reaction is the same as Orin Kerr's -- the press will have a field day with this one. They will focus on the "sexy" provisions like:

Section 301-306, "Terrorist Identification Database": These sections would authorize creation of a DNA database on "suspected terrorists," expansively defined to include association with suspected terrorist groups, and noncitizens suspected of certain crimes or of having supported any group designated as terrorist.

Section 405, "Presumption for Pretrial Detention in Cases Involving Terrorism": While many people charged with drug offenses punishable by prison terms of 10 years or more are held before their trial without bail, this provision would create a comparable statute for those suspected of terrorist activity.

By focusing on these provisions, the press will obscure the real issues at play here. One of the key failures identified by the Senate Select Intelligence Committee in its post-9/11 report was the lack of cooperation and information flow between the FBI and CIA -- or more broadly, between the law enforcement and national security establishments. Breaking down that "wall of separation" is absolutely essential for combatting terrorism. Groups like Al Qaeda will seek to exploit the seam between law and war for their own advantage if we let them. The majority of this act appears targeted at that problem, and increasing the authority of government officials on both sides of this wall to do their jobs. More to follow...

Friday, February 7, 2003

Justice Department requests delay of Moussaoui trial

The Washington Post reports that lawyers for the Justice Department have asked U.S. District Judge Leonie Brinkema to delay the trial of Zacarias Moussaoui (the '20th hijacker') while they appeal a recent ruling to the 4th Circuit Court of Appeals. Judge Brinkema had ordered the U.S. government to allow Moussaoui's lawyers to interview Ramzi bin al-Shibh, a high-ranking member of Al Qaeda currently held by the U.S. government. The Justice Department (along with the White House and Pentagon) contend that such an interview would significantly harm the interrogation of bin al-Shibh currently underway at an undisclosed location. To date, those interrogations have yielded various valuable pieces of intelligence.

Some court-watchers speculate that the Justice Department will transfer Mr. Moussaoui to the Defense Department for trial by military commission. However, I stand by my earlier prediction that they will not try Mr. Moussaoui -- or anyone else -- by military tribunal because of the political blowback that would entail. Instead, I think the government will transfer Mr. Moussaoui to Guantanamo Bay or some other location for indefinite detention as an enemy combatant.
Does an increase in Threat Condition help the enemy?

Fellow law student Chris Baker raises a thorny problem with America's system for broadcasting terrorist threat levels to the population. (The threat was raised today by Attorney General John Ashcroft from 'elevated' to 'high').

DHS does an admirable job of highlighting the System's utility in advising citizens of individual protective measures they may take in response to elevating threat levels, but I think they have missed capturing what I consider to be an equally important effect. In elevating the threat condition, we give notice to terrorists planning imminent attacks that our integrated intelligence assets have "clued in" to their intentions; as such, we cause terrorist cells to perhaps take additional precautions to ensure their own force protection, and may actually either deter or delay an attack outright, or cause such a disruption in the terrorists' planned course of action so as to make them more vulnerable or more easily detectable by our enforcement agencies.

I think Chris' analysis is on target. The main goal of this warning system is to synchronize U.S. defensive postures, that is, to tell all of our agencies at the federal/state/local level that they need to implement the appropriate measures for the level we're at. However, we assume risk by broadcasting our defensive posture to the enemy. I think the synchronization benefits may outweigh that risk, but it's something that decision-makers ought to think about. Additionally, we need to be circumspect about the measures we take to implement this defensive posture, like putting more guards around high-value targets. Our enemy has prying eyes, and we need to deny him the information he needs to be successful. The element of surprise can be important. If a terrorist stumbles into a situation he wasn't prepared for, like something that's more protected than he thought, it could ruin his whole day. Generally speaking, it's always good to ruin a terrorist's day with that kind of surprise.
BREAKING NEWS: U.S. raises terrorism threat level from "elevated" to "high"

WASHINGTON (CNN) -- The federal government on Friday raised the national terrorism threat level to "orange," indicating a "high risk of terrorist attacks."
The move is only the second time since the September 11 terror attacks that the level has risen above "yellow," or elevated risk.

* * *
Homeland Security Secretary Tom Ridge outlined how the public might be affected by the heightened security level.
"...increased security personnel at points of entry," Ridge said. "In fact, limited points of entry and exit, enhanced identification checks, restrictions to travel around federal facilities and airports ... will be implemented."
Ashcroft described the threat. "Recent intelligence reports suggests that al Qaeda leaders have emphasized planning for attacks on apartment buildings, hotels and other soft or lightly secured targets in the United States," he said.

Analysis: This is big news. The U.S. would not raise the threat condition, something which triggers a number of control measures around the country, without some credible intelligence that an attack was going to happen. It's especially troubling that we have intelligence indicating an Al Qaeda attack on "soft targets". The paradox of anti-terrorism planning is that the more you protect the hard targets (e.g. the White House, Pentagon, airports, nuclear sites, etc), the more you make the soft targets (Mall of America, schools, large apartment buildings, etc) into targets. The best way to combat terrorism against soft targets is through aggressive reconnaissance and surveillance of the area of operations. Most of that gets done at the local level by local cops, working with intelligence feeds from the federal level (FBI and CIA).

There may be a significant tie-in here between the looming war with Iraq and the threats we're picking up in intelligence intercepts. Al Qaeda's operational doctrine calls for the opening of a "second front" on American civilians in the event of an attack on an Arab state like the one we're currently planning. Specifically, we have predicted two terrorist courses of action for this scenario. 1) Terrorists will attack the deployment infrastructure of the military to stem the flow of troops, such as seaports that are loading military equipment bound for the Persian Gulf. I guarantee you: these are well protected right now. 2) Terrorists will strike American civilian targets to undermine our will to fight; to raise the blood cost of war in Iraq. I still think that we must disarm Iraq by force if necessary. But we also must take pro-active measures at home to safeguard the American population against this threat, which is logically tied to our campaign in the desert.
Total Information Awarness Update

Pentagon announces an oversight panel of legal scholars to safeguard civil liberties

The Defense Department announced today that it would form an advisory board to monitor the Total Information Awareness project. "The TIA internal oversight board will oversee and monitor the manner in which terrorist tracking tools are transitioned for real world use. ... A primary focus of the board will be to ensure that the TIA-developed tools to track terrorists will be used only in accordance with existing privacy protection laws and policies." (DoD Announcement) Presumably, this advisory board is a response to heavy criticism of TIA from all over the political spectrum, including legislative proposals in Congress which would sharply limit the funding for TIA until the Pentagon reported to Congress on the way it would protect civil liberties in the development of this program.

I was impressed by the membership of the panel. Indeed, I think the membership of this panel exceeds even the Sept. 11 Commission for star value -- these are the all stars of Constitutional Law and civil liberties:
- Newton Minow (chairman), director of the Annenberg Washington Program and the Annenberg Professor of Communications Law and Policy at Northwestern University
- Floyd Abrams, renowned 1st Amendment civil rights attorney
- Zoe Baird, director Markel Foundation (and Clinton Administration nominee for Attorney General)
- Griffin Bell, former U.S. Attorney General and Court of Appeals judge
- Gerhard Casper, president emeritus for Stanford University and Professor of Law (a very eminent Constitutional Law scholar)
- William T. Coleman, former chairman and CEO of BEA (world's leading application and infrastructure company) and now Chief Customer Advocate
- Lloyd Cutler, former White House Counsel
Not only is this an all-star panel, but it's a balanced panel. At least three of the members are Democrats, and all are on the record as having strong views on the protection of civil rights and civil liberties. This move can only bolster the credibility of the Bush Administration on this issue.

Notwithstanding this announcement, the Pentagon maintains that TIA is 1) not a threat to civil liberties, 2) not a tool for collecting information on all US citizens, and 3) not going to result in the creation of a massive database for spying on US citizens.

"Development of these anti-terrorism tracking tools would allow the agencies to better execute their missions. TIA does not plan to create a gigantic database. Further, TIA has not ever collected or gathered and is not now collecting or gathering any intelligence information. This is and will continue to be the responsibility of the US foreign intelligence/counterintelligence agencies, which operate under various legal and policy restrictions with congressional oversight. This technology development program in no way alters the authority or responsibility of the intelligence community. Furthermore, TIA has never collected, and has no plan or intent to collect privately held consumer data on U.S. citizens. It is a research program designed to catch terrorists before they strike."

Bottom Line: I've gone on the record as a TIA supporter because I believe in the need to gather information and analyze it to produce actionable intelligence. TIA has the potential to be a valuable tool for law enforcement and intelligence officials. The bio-medical component also has tremendous potential for the prevention of terrorism -- as well as American public-health efforts in general. I agree with the critics that TIA needs to be monitored for any risk to civil liberties, and I think this Pentagon plan is exactly the right prescription.
WSJ: Soldiers' Gear Improves With 'Lessons Learned' in Afghanistan

Today's Wall Street Journal ran a pair of articles on a subject I've cared about for a long time -- soldier equipment. I'm not talking about high-tech stuff like helicopters, tanks, and HMMWVs. I'm talking about low-tech stuff that every soldier -- and especially every infantryman -- needs to survive and win in combat. Boots, rifles, rifle scopes, field rations, CamelBak canteens, night-vision goggles -- these are the items that can make the difference between life and death in combat. I wrote an article for the Los Angeles Times in February 2002 that criticized the Pentagon and Congress for building a budget that failed to provide these basic items. As an Army officer, I often had to buy my own AA batteries to run my night-vision goggles and GPS receivers. And my unit fought with our headquarters to fund such items as CamelBak water carriers and extra bullets for training.

The articles today focus on how the Army dealt with gear problems in Afghanistan. It's a success story, largely due to the initiative of Army Master Sgt. Rudy Romero. This NCO wrote a 3-page e-mail to an old boss asking him to lunch, and sharing some 'lessons learned' from his recent combat tour in Afghanistan. MSG Romero's e-mail contained no BS; no equivocation -- it spelled out the truth about Army gear, Army tactics, and Army leadership. It got noticed. MSG Romero's e-mail was forwarded around the Army several times, and eventually wound up in the Pentagon. There, it found an audience with the Sergeant Major of the Army and the Chief of Staff of the Army, who directed the Army to fix these problems as fast as possible.

Last July, a few weeks after he got back from Afghanistan, Master Sgt. Rudy Romero wrote a quick e-mail to one of his old commanding officers. "How's everything going sir? Let's get together for lunch. I know a pretty good place if you like Mexican," he began.

He followed that with three pages of advice from his tour in Afghanistan with the Army's 101st Airborne division -- everything from the best gloves to take (fleece from AutoZone) to the best socks (Gore-Tex, available in camping stores). He also told his former boss to ditch the Army-issue ammunition sacks and instead buy bags from London Bridge Trading Co.

The 37-year-old soldier figured that sooner or later his former commander would be deployed to Afghanistan and that sharing his experience might make the tour easier. Little did he know that his military version of "Hints from Heloise" would make its way to the Pentagon's top brass and inspire significant changes in the way the Army is equipping its troops for possible future battles, including Iraq.
* * *
A month after he hit the "send" button, Sgt. Romero got a call from Sgt. Major Tilley telling him that the Army wanted him to go to its U.S. Soldier Systems Center in Natick, Mass., where engineers were busily at work developing the gear that soldiers take into battle. Sgt. Romero grabbed two of his buddies at Fort Campbell, Ky., and headed out a few days later.
* * *
Sgt. Romero had lots of advice for the people who design the Army's tan desert boots, which troops wore in Afghanistan.

Although the boots worked just fine on the soft sands of Iraq, they fell to pieces after a couple of months in Afghanistan, where the ground is rocky. The engineers took note, and the Army is buying new boots with special composite soles that should stand up better in Central Asia.

His biggest complaint was that Army gear weighs too much. "We were easily carrying 80 lbs. Throw on the ruck [Army backpack] and you're sucking," he wrote.

To make their point, the three men explained how soldiers in Afghanistan consumed their Meals Ready to Eat, the plastic-wrapped all-in-one food packets that weigh about two pounds and last around three years. Before going into battle they "field stripped" the meals to cut down on their carrying weight. "We kept the high carb stuff for energy and threw out everything else," Sgt. Romero told the nutritionist responsible for developing the meals.

Based in part on his suggestions, the Army is designing a lightweight Long Range Reconnaissance Patrol Ration.

The three raised another practical concern: Too many of the Army's new gadgets use different kinds of batteries, further increasing the load. Some soldiers, Sgt. Romero explained, buy commercial GPS locators from camping stores and discard their military-issue devices simply because the civilian ones use the same batteries as their night-vision goggles. The engineers, who had heard similar complaints before, said they would keep that in mind but made no promises.

Today Sgt. Romero's e-mail is still posted on several military Web sites and in a half-dozen or so Internet chat rooms.

I received MSG Romero's e-mail through a military list-serv I belong to. It struck me as the kind of no-nonsense review we ought to be doing after every engagement, to learn vital lessons and fix things for next time. Soldiers like MSG Romero are truly America's greatest asset -- they are the heart and soul of our combat power. I've excerpted his last paragraph:

Justice Department mulls transfer of Moussaoui case to military tribunal

Constitutional tension between 6th Amendment and President prerogative to wage war

Today's New York Times reports that the Justice Department has started to seriously consider transferring the Zacarias Moussaoui "20th hijacker" case to the Defense Department, for prosecution under the President's 13 Nov 01 military commissions order. Last week, Judge Leonie Brinkema ordered the government to allow defense questioning of Ramzi bin al-Shibh, a high-ranking Al Qaeda official currently in U.S. custody and under interrogation. This gets more complicated because Moussaoui is defending himself (with some legal assistance), and thus could be the one questioning a former colleague-in-arms (or intimately involved with the communications).

Moreover, the government has a strong interest in continuing to isolate bin al-Shibh:
A federal law enforcement official said the Defense Department and intelligence agencies also did not want to interrupt the "psychological games that are being played" with Mr. bin al-Shibh, who is reported to be undergoing intensive interrogations overseas.

Unfortunately, Judge Brinkema's hands were tied. The Constitutional jurisprudence in this area is fairly clear -- the 6th Amendment rights of criminal defendants trumps any other considerations the government may have. That's the way our system is built: it stands for the rights of the accused above all else, nearly all of the time.
Mr. Moussaoui's lawyers have argued that the Constitution's fair-trial protections entitle them to access to Mr. bin al-Shibh, because he could have information that might bolster Mr. Moussaoui's defense. In her ruling, officials said, Judge Brinkema made clear she agreed.

This creates obvious tension between the 6th Amendment rights of Moussaoui and the Art. II duties of the President to prosecute this war as he judges necessary. I'm not sure how the case will be resolved. Moussaoui fits the President's 13 Nov 01 order well. He is a non-citizen; he has admitted his association with Al Qaeda; he was involved with the Sept. 11 conspiracy. Out of all the men in custody now (Lindh, Reid, Padilla, Moussaoui, Hamdi), Moussaoui is the best fit for a military commission. Ironically, the next best candidate is probably Ramzi bin al-Shibh.

That said, I'm not sure the Administration can afford the political blowback from implementing the military commissions system. The mere suggestion has stirred more controversy than the Administration was ready for, and I think its implementation would solidify a lot of opposition to the Bush Administration's war on terrorism in general. Lots of critics draw a connection between the USA PATRIOT Act, the recent FISA Court decisions, targeted killings, and now this possible military tribunal. (I don't agree with that connection, but that's the argument) Given the heat they've taken for this, I'm not sure the Bush Administration is willing to expend more political capital and potentially jeopardize the momentum they've developed on homeland security and Iraq.

Prediction: The Administration will remove Mr. Moussaoui to Guantanamo Bay and hold him indefinitely as an enemy combatant there, without trial. This avoids the political blowback of a commission, and accomplishes the goals of the Administration.