Saturday, April 26, 2003

Secretary of the Army steps down... finally

After months of speculation over when he would leave, embattled Secretary of the Army Thomas White resigned yesterday from the job he's held since 2001. White, a West Point grad and retired 1-star general, came into the office with great expectations. Everyone expected him to excel at leading the institution that many thought he might have led as a 4-star general, had he stayed on active duty. Unfortunately, White met with a firestorm of controversy early in his tenure as Enron crumbled, because White had left the Army to take a lucrative position with Enron energy services. After (barely) surviving that ordeal, White next took fire for guerilla political tactics by his Department of the Army legislative office that attempted to undercut the Secretary of Defense's decision to cut the Crusader artillery system. It's not clear why White stepped down now. My guess is that he was waiting for the end of the war in Iraq to step down, in order to minimize turbulence within the Pentagon.

Secretary White's uniformed chief of staff of the Army, Gen. Eric Shinseki, has also not fared well. He and Secretary Rumsfeld have been at loggerheads for some time. The two senior leaders are rumored to have deep disagreements over the strategic role of the Army, and the proper way to transform America's largest military service. Rumsfeld transformed Shinseki into a lame duck by letting his replacement's name be known -- nearly a year before Shinseki's retirement. (Since then, that officer has declined the job) Some have speculated that Secretary Rumsfeld's trip to Iraq this week is really to interview officers who might replace Shinseki -- Gen. Tommy Franks, LTG John Abizaid, or LTG William Wallace.

Update: Various news media reported the same thought -- that Secretary Rumsfeld's real purpose in visiting the Middle East this week was to make Tommy Franks an offer he couldn't refuse. Today, the Washington Post adds its voice to the fray, confirming that speculation and offering some thoughts on why the SecDef might want Franks for the job.
... Rumsfeld has had particular difficulty with the Army. Some senior officers resent what they see as the secretary's tendency toward micromanaging. He and some of his closest aides also are viewed by the Army as overly fond of air power and other high-tech weaponry, at the expense of ground troops.

Exacerbating tensions in recent months was criticism of the war plan for Iraq by some retired Army generals, who suggested Rumsfeld was taking unnecessary risks -- and who were viewed by some close to Rumsfeld as echoing views held by their active-duty comrades.

"I think he's interested in trying to build a new relationship with the Army," said a senior insider.
There's more to the story, of course. In the last two weeks, the Army's General Officer Mangement Office has put out a bunch of new assignment orders for 1- and 2-star generals in the Army, including change-of-command orders for the 3rd Infantry Division and 4th Infantry Division -- both currently in Iraq. Some of this can be written off to summertime job changes (the military likes to switch out officers in the summer for family reasons). But it could also be true that Secretary Rumsfeld is directing these personnel changes -- and that each new assignment represents his own personal imprimatur and stamp of approval.
Fighting SARS with the law

Today's Washington Post has an interesting article on the legal tools available for fighting public-health epidemics, such as the Sudden Acute Respiratory Syndrome (SARS) virus that's currently racing around Asia. The general thrust of the article is that the legal tools are insufficient -- and that any attempts to quarantine American citizens or cities would quickly degenerate into Orwellian chaos. I'm not sure this latter part is true, but I certainly think the first is. The President does have broad power in this area under federal law, including the power to use military units to conduct such operations (like in the movie Outbreak with Dustin Hoffman). Similarly, state governors have the power in many states (like California) to do so. What lacks is the ability in many states to pro-actively investigate such activities as crimes in themselves, as opposed to inchoate forms of murder or assault. Bottom Line: America still lacks the kind of preparedness for bioterrorism that we have in other areas, such as our airports. We need to put more resources -- legal, financial, political -- into this area.

Friday, April 25, 2003

Gen. Franks: We'll be there "as long as it takes"

In an interview with the St. Petersburg Times, Gen. Tommy Franks said that American forces could stay in Iraq for quite some time -- that the focus was on getting the mission done, not leaving by a certain date. He also said there's a great deal of uncertainty about how long this could be, and that it was premature to estimate any sort of exit from Iraq now.
"The fact is we don't know how long it'll take . . . because we do not yet know exactly how devoted the Iraqis themselves will be in getting over their own tribal and ethnic and religious difficulties," Franks said in a wide-ranging telephone interview with the St. Petersburg Times from his office in Qatar.

"What we do know," Franks said, "is that we're going to stay with them while they do it. We're going to stay with the Iraqis as long as it takes them to get a government on its feet."
The Times also provided an excerpt from the interview that quoted Franks repeating this assertion -- that we're in Iraq for the long haul.
Q: What do we have to accomplish in Iraq before we can declare victory and pull out our troops, and how long will it take?

Franks: How long it'll take, I don't know. I believe that we have seen the phases of this operation, the ones that are going to be done very quickly, we have seen them accomplished, the removal of the regime, the decisive defeat of the military forces of Iraq - decisive, and I'll say very rapidly, very quickly. I believe that the work that remains to be done is certainly going to take longer than the work that we have done until this point.
Analysis: Building a nation takes time, as Austin Bay and others have pointed out. Even the basic civil affairs work to get water, power, food and other infrastructural systems on their feet takes weeks, not days. Our experience in Haiti, Bosnia, and Kosovo showed that it takes a lot longer to win the peace than to win the war. Indeed, the war may be won with a few shots from the air, but the peace will take thousands of men (and women) on the ground to win. Gen. Franks won't estimate America's departure from Iraq. I will. I think we'll be there at least 5 years, possibly as many as 30. Our mission there could last a generation, and we should be prepared for that contingency.

Thursday, April 24, 2003

Does the Army need more military police?

Greg Jaffe reports in today's Wall Street Journal (subscription required) that the Pentagon has undertaken a major study to see whether it should boost the size of the Army's military police, adjust the mix of active/reserve MPs, or privatize some MP missions like law enforcement to free up more MPs for peacekeeping. The study comes at a time when MPs are stretched across the world, guarding posts in the United States, enforcing peace in Kosovo, and building nations in Afghanistan and Iraq.
Military police have grown in importance since Sept. 11, 2001, as American troops have ousted regimes in two countries and faced chaotic aftermaths, while the terror threat at home has put more MPs on guard duty at domestic military bases. Last December, the Army was forced to mobilize about 9,000 National Guard infantry soldiers to replace MPs on that security detail at 163 Air Force bases; most Air Force MPs on the bases were reservists in their second year of active-duty service, and were about to be sent home.

MPs specialize in bringing stability to an area following combat. They are trained in securing critical facilities such as banks and power plants, as well as in crowd control and law enforcement. When military police officers aren't immediately available in such situations, chaos often reigns. In 1989 in Panama and 1993 in Haiti, widespread looting also followed U.S. operations.

Military planners for the Iraq war "didn't mind the lessons from Haiti, Bosnia, Kosovo and Afghanistan. They didn't have enough military police ready," says William Flavin, who teaches at the U.S. Army War College in Carlisle, Pa., and helped review the Bosnia, Kosovo and East Timor peacekeeping missions for the Army.
* * *
The problem for MPs is that many of the combat jobs persist once the shooting stops. New jobs or missions are then layered on top of the old ones. "Military police are particularly good at gathering intelligence, because they are dealing with stragglers, refugees and prisoners of war," says Col. Larry Forster, a former military-police officer. In Iraq, MPs are being used to gather information about key regime officials loyal to Mr. Hussein, as well as the potential whereabouts of chemical and biological weapons.

MPs also are trained to deal with civilians using the minimum force necessary to resolve a conflict or problem, making them a good force for dealing with unruly demonstrators or looters in places such as Baghdad or Mosul. "We can perform all our assigned missions well, but we can't perform them all simultaneously. That's where you run into problems," says one military-police officer.

There is little appetite in the Bush administration for increasing the size of the military. Meanwhile, military officials in the Pentagon are hesitant to reduce the size of combat forces so that they can increase the size of the military-police force. "There's not an open bag of resources for us to reach into and add more MPs," Gen. Curry says. Among other ideas, he is exploring whether some missions such as guarding U.S. bases can be handed off to less-specialized infantry soldiers to free up MPs to help restore order in places like Iraq.
Analysis: Full disclosure: I served as an MP lieutenant and captain on active duty, so of course I think the Army needs more MPs. But honestly, I do think it makes sense. So many of the missions the Army has today are to do things that MPs are good at: nation-building, peacekeeping, anti-terrorism/force protection, and other police-style missions. In the Balkans, we've succeeded by hammering square infantry units into round MP holes for a long time, with significant training and institutional costs. I've thought for some time that the right answer would be to create larger, rapidly-deployable MP units that could be used for these kinds of missions. Current practice is to give peacekeeping missions to a large combat unit (e.g. an infantry brigade) with 1-3 MP companies attached in support. The MPs just get used for specialized missions, like riot control, while the infantry do the bulk of the MP-style missions like running checkpoints, patrols, etc. It might make more sense to invert this relationship, and build more MP brigades capable of managing peacekeeping missions with an infantry company as a quick-response force.

Unfortunately, the Pentagon doesn't have unlimited options. It'd be great to build more MPs, but military personnel strength is a zero-sum game. Those units would have to come from somewhere, and they would likely come from combat units. (The military's end strength is capped as a matter of law, and it takes Congressional approval to adjust this number, which has significant budget repercussions.) Moreover, the Army's done all right with combat arms units in these missions, provided they get extensive training prior to deployment. One thing that's different about the units in Iraq now -- as compared with combat divisions who have deployed to Bosnia or Kosovo -- is that the guys in Iraq did not go through an extensive pre-deployment training on peacekeeping and nation-building operations. Before any Balkans rotation, units go through such training, culminating in a "Mission Rehearsal Exercise" that's often held at one of the combat training centers. So while using combat units has worked to date, it may not work as well in Iraq.

Furthermore, moving units from the reserves to the active force isn't that simple either. It costs money to do so, and it would require an adjustment in the military's end strength (or cutting of personnel from other areas). Privatizing law enforcement on military bases sounds good, but it would have a real impact on MP training. The reason MPs are so good is because they practice their peacekeeping skills every day they're doing law enforcement. Granted, there's a big difference between patrolling Fort Hood and patrolling Baghdad. But there's a lot of similarity too, especially in the abilities to work within restrictive rules of engagement and employ forceful interpersonal communication skills. So it's not clear this is the answer either.

Bottom Line: If I were in the Pentagon, I'd recommend that the bill go to Congress to increase the end strength to buy more MPs. They're well worth the cost, along with some of the other specialty branches like Civil Affairs and Special Forces whose work often goes unnoticed after the infantry leave. Doing so would give the military much more of full-spectrum capability than it has today, by enlarging its capacity for dealing with missions and threats in the gray area between peace and war.
What about the guys at Gitmo?

Neil Lewis has a long piece in today's New York Times discussing the legal and political implications of our continued detention of Al Qaeda and Taliban members at Guantanamo Bay, Cuba. The issue has caused some amount of consternation worldwide, particularly with regards to the American decision to label these men as "unlawful enemy combatants". That label means they do not get the legal protections of the Third Geneva Convention, although the U.S. has followed most of the humanitarian provisions of that treaty for these men.
With the United States on the verge of releasing 7,000 prisoners seized during the war in Iraq, lawyers and human rights advocates say they hope the contrast with the long detentions here will put more pressure on the administration to deal with the people captured in Afghanistan and other countries in the campaign against terrorism.

To a small extent, the military has begun to do that. In mid-March, 22 prisoners were released from Guantánamo, sent back to Afghanistan with blue jeans, new copies of the Koran and, on average, an additional 13 pounds from a diet that is similar to that of the soldiers who guard them. At the other end of the spectrum, the Pentagon is preparing soon to bring a handful of inmates before a military tribunal.

But the majority of the detainees still face an uncertain future on an island chosen explicitly for its unusual features. Not only is the base lodged on sovereign territory of Cuba, a nominally hostile country, and ringed by a 17-mile-long fence with armed watchtowers on both sides. Two federal courts have also said that despite the fact that it is totally under United States control, the base is outside the reach of United States law because it is technically part of Cuba.

Why hasn't Al Qaeda struck again?

The Washington Times has an interesting front-page story today that speculates on the reasons why Al Qaeda has failed to strike the U.S. during the war on Iraq. Some experts have gone so far as to question Al Qaeda's viability as an organization, saying its terrorist credibility has been shot by its failure to act.
Despite a few suicide bombings that targeted U.S. forces in Iraq, speculation that Saddam's regime would resort to widespread terrorist attacks to disrupt the coalition campaign also did not pan out.

The link between the war in Iraq and the larger post-September 11 war on terrorism has been one of the most contested battlegrounds in the debate over toppling Saddam.

The administration and its supporters argued that Saddam's regime had operational links and a common purpose with al Qaeda's campaign against the West. More broadly, they said, forceful action against Baghdad and its reported weapons of mass destruction would send a powerful message of American resolve to hostile terrorist groups and the regimes that tolerate them.
* * *
Counterterrorism analysts say the arrest of al Qaeda operations chief Khalid Shaikh Mohammed in Pakistan just days before the war began is the most damaging blow to al Qaeda since the loss of its Afghanistan training bases when U.S.-led forces toppled the Taliban.

No U.S. official is ready to declare the war on terrorism won, and administration spokesmen said both Iraqi intelligence agents and al Qaeda operatives tried and failed to carry out attacks during the war.
So... the question is still open. Has Al Qaeda really been crippled by the attacks on Afghanistan and Iraq? Or has Al Qaeda decided to exercise tactical patience? Personally, I think the latter is true, because of some of the reading I've done on terror networks and their ability to absorb repeated assaults. Certainly, now is no time to be complacent.

Wednesday, April 23, 2003

Baghdad wasn't built in a day

Civil affairs work takes time -- nations aren't rebuilt overnight

Austin Bay, who writes frequently for the Washington Times and other publications, has some good thoughts on the unrealistic expectations that beset American nation-building in Iraq. Like all such operations -- Somalia, Haiti, Bosnia, Kosovo and Afghanistan -- the work in Iraq will take time. Moving thousands of men, millions of pounds of logistical support, and setting up complex infrastructural operations takes time. Federal Express couldn't establish mail service overnight, nor could WalMart set up distribution channels overnight in Iraq. Similarly, the Pentagon-led reconstruction effort will take weeks and months to build effective institutions in Iraq.
Garner's and the Iraqi people's task is truly a 21st century endeavor. Their sweat, vision and spine must surmount some of the 20th century's worst fascist and socialist depredations, while finessing 12th century religious attitudes. They must accomplish this under the harsh gaze of an insistent, antsy media with biases to feed and ratings to spur.

For the sake of Iraq's people, better put some patient, credible minds behind that media gaze. How many critics got Afghanistan and Operation Iraqi Freedom dead wrong? Where are the massive civilian casualties and the quagmire in the sand? Spin it to me again, about Vietnam in Baghdad?

The Iraqi people have been freed from a despicable tyranny. Creating a resilient democracy will take time, with success or failure only following years of sustained effort.

Pentagon plans massive workforce overhaul

Secretary of Defense Donald Rumsfeld sent over a legislative package earlier this month to Congress which outlined a number of ways he hopes to transform the way military and civilian personnel systems work in the Defense Department. Today, the Washington Post characterizes that package as one of the most ambitious civil-service reforms in American history. Having read the package, I tend to agree. Here's a sample of what it would do:
Defense officials said they hope to start implementing the plan as soon as this fall. They admit that they have not left lawmakers with much time, but said holding off until next year, an election year, would hurt the bill's chances even more.

The plan's most ambitious feature is a proposal to toss out the General Schedule for 470,000 white-collar workers (such as scientists, engineers and administrators) and replace it with pay bands, which would create a salary range for certain positions. Top workers would get substantial annual raises based on job evaluations, while low performers would not get raises.

The pay band proposal represents a sharp departure from the current system, which guarantees a base-level pay increase every year and rewards longevity as well as performance.
This is big stuff -- at least as big as the 1986 Goldwater-Nichols Act which transformed the command structure of the services and created the Joint Chiefs of Staff and combatant commands (like CENTCOM) that we know today. It's also needed. The Pentagon is an incredibly bloated and top-heavy bureaucracy, and it's next to impossible for the Secretary to trim the fat with the way the civil-service laws exist today. There are bound to be cries from unions and others who claim these reforms go too far. But I think those cries are wrong. Today's world requires management flexibility, especially in the Defense Department. New and emerging threats demand new management approaches, new procurement programs, new command structures, and the Secretary has to have the flexibility to move manpower and resources to meet those threats. The current system doesn't let him do that.
Suspected terrorist-affiliated charity goes to court

Today's Washington Post reports on an attempt by the Holy Land Foundation to overturn its designation as a terrorist-affiliated organization, and to cancel out subsequent moves by law enforcement to close the charity and seize its assets.
...lawyers for the Holy Land Foundation for Relief and Development told a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit that the Texas-based charity had never given money to the Islamic Resistance Movement, or Hamas. That allegation is the foundation of the government's case.

Attorney John D. Cline also told the panel that a federal judge had erred in dismissing Holy Land's claims that the government's December 2001 closure of the organization was a violation of its rights to free speech and freedom from self-incrimination, as outlined in the First and Fifth amendments to the Constitution.
* * *
Justice Department attorney Douglas Letter said there is nearly a decade of evidence that shows that Holy Land supported Hamas. He said that to open cases in which the government designates organizations as sponsors of terrorism to the standards of regular civil litigation -- in which FBI agents and informants could be called into court to testify -- would defeat the purposes of anti-terrorism legislation.
Analysis: Without the court documents, I can't go into detail on the actual facts or legal problem at issue. (I intend to get them, however, for my terrorism seminar because this is one of my case studies on 18 U.S.C. 2339b -- the "material support" statute.) I imagine a lot turns on the particular statutes in play, and the particular legal actions taken by the government (e.g. a seizure of assets).

However, there are larger issues at stake in this legal fight. Taking down terrorist-affiliated charities is a key component of America's war on terrorism. Charitable organizations -- whether they are legitimate or simply fronts -- enable terrorist groups like the IRA, PLO and Al Qaeda to move money, men and materiel around the world. With their legitimate ties to banks and financial institutions, they provide one major link for terrorist organizations to the global financial system. The United States must get this right, because these charities play such a key role in the financing of global, networked terrorism. That said, the potential for "blowback" is huge here. If we take down the wrong charities, and impede the good work that such charities do, we will only add more fuel to the fire of terrorism. Thus, we must take measured but deliberate steps in our financial war on terrorism. Make no mistake about it -- this aspect of the war is as important as the ground war in Afghanistan. Without these global financial networks, organizations like Al Qaeda lose their ability to project power and force around the world. They become, in essence, local organizations with local means. (For more, see my Writ essay "Al Qaeda and the Advent of Multinational Terrorism: Why 'Material Support' Prosecutions Are Key In the War on Terrorism.")

Tuesday, April 22, 2003

UCLA law faculty file dissenting opinion on the war

Three professors at my law school have written a dissenting opinion of sorts to last week's vote by the UCLA Academic Senate condemning the war against Iraq. The essay ran in today's Los Angeles Times on the op-ed page. I admire these men for the stand they made at the faculty's meeting, and for their decision to air their views today.
Why did we do it?

We were mugged.

We were mugged by about 200 of our faculty colleagues at UCLA. These colleagues condemn the liberation of Iraq and wanted to say so publicly. But they were not content to speak out in their own names, as they had every right to do. Instead, they insisted on speaking in our names — and in the names of the more than 3,000 people on the UCLA faculty.

How did they do it? First, they circulated a petition to call a special meeting of the academic senate. Every UCLA faculty member with tenure or with prospects for tenure is a member of the senate, which represents the faculty in its dealing with the university administration. Because the academic senate does and should include people with widely divergent opinions on most public issues, it is of crucial importance that it confine itself to curriculum, academic standards, admissions and other matters within the mission of the university.

But apparently not everyone on the faculty sees it that way. According to the rules of the academic senate, 200 members can convene a special meeting by signing petitions. Two hundred members did so, and the meeting was held last week, at a time when many on the faculty were busy teaching or preparing for class.
My thoughts... I agree with this dissent. The UCLA vote took place at a contentious meeting of just 200 faculty members -- out of 3,300 UCLA faculty. The Academic Senate's procedural rules allow such a small number to suffice as a quorum, and this vote appears to be an abuse of that rule. A small vocal minority of the faculty instigated this emergency meeting and vote. They did not seek broad faculty input; indeed, they sought to vote as quickly as possible with their engineered quorum and mini-majority. Setting the actual resolution aside for a moment, the means employed by the UCLA faculty cabal make America's UN diplomacy look chivalrous by comparison.

However, you can't set aside the resolution's text. It goes too far, even for a liberal faculty that wanted to make a statement of conscience against the war. Unlike other resolutions, like the L.A. City Council resolution, this one makes no statement of support for our soldiers. It sharply criticizes the Administration, its war, and the means for carrying it out.
We, the faculty members of the University of California Los Angeles, say to the President of the United States, that we:

1. condemn the United States invasion of Iraq;
2. deplore the doctrine of preventive war the President has used to justify it the invasion;
3. reaffirm our commitment to addressing international conflicts through the rule of law and the United Nations;
4. oppose the establishment of an American protectorate in Iraq; and
5. call for the establishment of a post-war representative government in Iraq, answerable to the United Nations, which guarantees to Iraqis inalienable personal, political and civil rights.
I also did my undergraduate work at UCLA, graduating in 1997 with a bachelor's degree in political science. While an undergraduate, I joined Army ROTC and took classes in the Military Science department. I always felt then that I had the support of my faculty, and even their admiration, for my pursuit of an Army officer's commission after graduation. Today, I do not think I would feel the same way. If I were an undergraduate today in ROTC, with my nation at war, I would see this resolution as open hostility. Knowing my faculty openly opposed the military institution and my future career choices would have a substantial impact on me. Indeed, I would certainly feel chilled in any classes taught by the minority faculty members who voted in this resolution. A "support the troops" clause can be dismissed as empty rhetoric. But such a clause would also soften the blow for the hundreds of UCLA students, faculty and staff who have ties to the military.

Ultimately, the 1960 California Master Plan for Higher Education gives the University of California three missions: research, teaching and public service. I'm not sure this resolution serves any of those missions, and I think it may frustrate at least two of them. Such resolutions interfere with faculty teaching insofar as they chill debate on issues that ought to be discussed in a university. When the faculty -- who have tremendous power over junior faculty, grad students and undergraduates -- go on the record like this, it affects the speech of those they supervise or teach. I'm sure that some brave (or ignorant) students and junior faculty will speak their mind without reference to the consequences. But many will curb their speech, lest they clash too violently with these anti-war faculty.

To the extent that such resolutions add a polemical and uninformed voice to the public debate, I'm not sure they provide a public service either. Certainly some UCLA faculty know a lot about war, strategy, international affairs and other related issues. But this resolution didn't come from those faculty -- it came from the most radical members instead, who sought to stamp their views with the imprimatur of the UCLA Academic Senate. It didn't contribute anything meaningful to the debate, besides the additional voices of those who could have easily spoken as individuals instead of hijacking their faculty organization. Everyone ought to have the right to speak their mind. But I believe the UCLA faculty should use its voice with more measured judgment in the future, lest it squander the value of its collective voice on issues like this.
More security problems at Los Alamos

Normally, security problems at one of America's three major nuclear research labs would be a matter of concern. In the age of multinational, well-financed, apocalyptic terrorism, it's substantially more of one. Noah Shachtman has been reporting on this story for some time, and he has another update on the security problems at America's Los Alamos Nuclear Laboratory in New Mexico. (Thanks to Instapundit for the tip)
A new look at Posse Comitatus?

David Morris reports in National Journal's CongressDaily that Sen. John Warner (R-Va) has indicated he may hold hearings on whether to revise the Posse Comitatus Act, a Civil War-era law which bans federal troops from civilian law enforcement. Sen. Warner, who chairs the powerful Senate Armed Services Committee, "remains concerned about making sure Posse Comitatus is not limiting legislation," a spokesman said, adding that " "He remains open to re-examining and reviewing it."
Warner raised the idea of hearings in 2001 and repeated it late last year, when election results gave Republicans control of the Senate and put him in line to chair the Armed Services panel. He revisited the issue while questioning Paul McHale, assistant Defense secretary for homeland defense, during an April 8 committee hearing. While McHale said protecting the country "requires an unprecedented level of cooperation throughout all levels of government," he said Rumsfeld has decided the law should not be changed. Gen. Ralph Eberhart, commander of the military's Northern Command, took a similar position at a House Armed Services hearing in March. "We believe the act, as amended, provides the authority we need to do our job, and no modification is needed at this time," he said.
Analysis: This issue got a lot of attention in July 2002 when the New York Times spun a quote from Gen. Eberhart suggesting that this law needed revision to support some of the military's roles in anti-terrorism law. After a great deal of debate, Congress eventually added a provision to the Homeland Security Act (creating the new Department of Homeland Security) which affirmed its belief in the Posse Comitatus Act and the exceptions already in existence. That provision read:
(1) Section 1385 of title 18, United States Code (commonly known as the `Posse Comitatus Act'), prohibits the use of the Armed Forces as a posse comitatus to execute the laws except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.
* * *
(3) The Posse Comitatus Act has served the Nation well in limiting the use of the Armed Forces to enforce the law.

(4) Nevertheless, by its express terms, the Posse Comitatus Act is not a complete barrier to the use of the Armed Forces for a range of domestic purposes, including law enforcement functions, when the use of the Armed Forces is authorized by Act of Congress or the President determines that the use of the Armed Forces is required to fulfill the President's obligations under the Constitution to respond promptly in time of war, insurrection, or other serious emergency.

(5) Existing laws, including chapter 15 of title 10, United States Code (commonly known as the `Insurrection Act'), and the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.), grant the President broad powers that may be invoked in the event of domestic emergencies, including an attack against the Nation using weapons of mass destruction, and these laws specifically authorize the President to use the Armed Forces to help restore public order.
Moreover, a substantial number of exceptions already exist in Title 10 that enable the Defense Department to get around the Posse Comitatus ban if it wants to aid law enforcement in certain circumstances. Most of these exceptions were carved out during the "War on Drugs" during the 1980s, but they remain in force today. Indeed, such exceptions were used to justify the recent use of an Army surveillance plane by Washington-era police in their hunt for the DC sniper. I wrote a piece in July 2002 which laid some of these exceptions out.
Title 10 is the part of the United States Code that covers the federal military. It authorizes the domestic use of military assets to support law enforcement in numerous areas. Most of the Title 10 exceptions allowing military involvement in domestic policing were carved out during the Reagan Presidency for the so-called "War on Drugs."

These exceptions allow the military to provide specialized support to domestic law enforcement agencies - particularly in areas where domestic law enforcement agencies don't have any capability. Those areas include long-range surveillance and intelligence capabilities. Vague phrases in the statute such as "training and advising civilian law enforcement officials" or "maintenance and operation of equipment" hint at other such areas.

Indeed, the only limit which remains on military personnel is a "restriction on direct participation by military personnel" in specific police actions - defined to include only "search, seizure, arrest, or other similar activity." (And even these activities can be performed if another law authorizes it.)

This leaves the field wide open for military support in other areas, such as the provision of information, use of military helicopters, surveillance capabilities, just to name a few.
Ending thoughts: I still think this is the right balance. We don't want our military (even our military police) to get into the actual law enforcement business. The line that exists today is not an especially clear one, but it does effectively prevent the military from getting into the most invasive parts of law enforcement that implicate 4th Amendment rights. Sen. Warner can hold all the hearings he wants on this bill, but I think both the Pentagon and ACLU would agree that this is one path they don't want to walk down. Enough exceptions already exist in Title 10, enabling the military to provide intelligence support, training, WMD support, and equipment when necessary to aid law enforcement. Any more exceptions would certainly swallow the rule, and would certainly destroy the American tradition of separating military and civilian law enforcement.
After-action review on the 24 Mar 03 Apache attack

Today's Washington Times has a great report analyzing the "deep attack" on Republican Guard positions that was carried out by Apache AH-64D helicopters on the night of 24 March. Heavy ground fire turned back that attack, damaging dozens of helicopters and and causing one to crash land in a farmer's field leaving the two pilots to be captured as POWs.

The attack was designed to penetrate Iraqi-held territory, find and kill key elements of the Republican Guard divisions then facing the Army's 3rd Infantry Division and 101st Airborne Division. In theory, such attacks (combined with artillery and high-altitude bombing) decimate the enemy to the point where they can't offer any resistance once ground forces actually make contact. The practice is pejoratively known as "setting the conditions" for a ground assault. Artillery and airpower pound the enemy until the odds are so in favor of American ground forces that we can afford to launch the ground assault with low to moderate risk.

Pentagon Reporter Rowan Scarborough reports in today's Washington Times that the military has begun to pick apart this attack for the critical issues that led to its failure. This is common practice in the military -- every training exercise, operational mission and deployment gets picked apart afterwards in what's called an "after action review". Units that didn't fight this time scrutinize those "lessons learned" so they can benefit from the mistakes made, and avoid them during their first taste of combat. Scarborough focuses on one crucial mistake -- the failure to integrate the Apache attack with other services and units to suppress enemy air defense that would fire back at the Apaches.
Military officials say Pentagon testers are examining the Apache damage to check for any design flaws or potential enhancements. The Army is looking at its deep-penetration tactics.

But some military officials are pointing to the crucial mistake: The Army did not include the Air Force in the plan to provide air cover and take out antiaircraft fire.
* * *
The Longbow comes with advanced radars and targeting that allow it to hover at a safe distance from its targets. But, like any helicopter, the Apache, no matter how advanced, is susceptible to small-arms fire beneath it. That was what happened on March 24.

The real problem, military sources said, was that in a war where "jointness" permeated nearly every strategic and tactical decision, on that one particular night the Army went in alone — without Air Force or Navy air cover and no bombing prestrikes.

"I think it was a miscalculation of the effect of their capability to deal with antiaircraft and small-arms fire," said retired Air Force Gen. Thomas McInerney, a prominent advocate of air power.

The Army learned a cruel lesson. Even with its mighty arsenal and night-attack sensors, the Apache's desert-skimming tactics are vulnerable to men on the ground with guns.
Analysis: Scarborough points out that LTG Wallace and V Corps learned from this mistake and changed their tactics for future deep attacks. It's also useful to point out that the 11th Aviation Regiment got lucky -- it lost just one helicopter, and no pilots were killed in the attack. Nonetheless, one officer points out that this Apache unit was "decimated at a critical time of war." The fight against the Republican Guard might have been easier if all of the Apaches had been able to fly missions continuously during the war, having not been shot up on this mission. I'm sure that an incredible logistical effort went into getting them back in the air as soon as possible. Judging by the war's outcome, it's not clear that this would have made a difference. But it might have. And these are all issues that the Army must address in its after-action reviews of the 24 March attack.
Will we or won't we seek bases in Iraq?

Rumsfeld squares off against the New York Times

On Sunday, the New York Times front page scooped the competition by reporting that America planned to establish a long-term military presence -- consisting of four bases -- in Iraq. The article, by Thom Shanker and Eric Schmitt, reported that America would retain bases it had already seized in the war -- such as the H-1 airfield in Western Iraq -- and use them both for nation-building operations and future operations in the region. Most of the article appeared to come from unnamed sources within the Bush Administration.
American military officials, in interviews this week, spoke of maintaining perhaps four bases in Iraq that could be used in the future: one at the international airport just outside Baghdad; another at Tallil, near Nasiriya in the south; the third at an isolated airstrip called H-1 in the western desert, along the old oil pipeline that runs to Jordan; and the last at the Bashur air field in the Kurdish north.

The military is already using these bases to support operations against the remnants of the old government, to deliver supplies and relief aid and for reconnaissance patrols. But as the invasion force withdraws in the months ahead and turns over control to a new Iraqi government, Pentagon officials expect to gain access to the bases in the event of some future crisis.
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"There will be some kind of a long-term defense relationship with a new Iraq, similar to Afghanistan," said one senior administration official. "The scope of that has yet to be defined — whether it will be full-up operational bases, smaller forward operating bases or just plain access."

These goals do not contradict the administration's official policy of rapid withdrawal from Iraq, officials say. The United States is acutely aware that the growing American presence in the Middle East and Southwest Asia invites charges of empire-building and may create new targets for terrorists.
Yesterday, Secretary of Defense Donald Rumsfeld vehemently denied this report at a Pentagon press conference, specifically calling out the New York Times report as an inaccurate story based on irresponsible leaks within the Administration.
Rumsfeld called a New York Times story that suggested such a thing "unhelpful." He said such articles left people in the Middle East with the impression that the United States is planning to occupy the country. "Not so," he said as he thumped the lectern at the Pentagon briefing studio. "It's flat false."

Rumsfeld said the United States went in to Iraq to change the regime, find and dispose of Saddam's weapons of mass destruction and stop the country from threatening its neighbors. He said the subject of long-term use of the air bases has not come up during Pentagon discussions.
The dissonance between Rumsfeld's comments and the New York Times report is immediately apparent. The Washington Post reported on the reversal, but did not offer any analysis of who's truth was correct. Honestly, it's very hard to tell. Leaking "trial balloons" in Washington is somewhat like an official sport, although less so in this administration than the last. Moreover, both stories seem plausible -- the U.S. is trying to reduce its military footprint in the Middle East, and it does want to leave Saudi Arabia if possible, so it makes sense that we would seek these bases in Iraq. On the other hand, we already have a substantial presence (with few problems) in Kuwait, Bahrain, and Qatar. I think the likely outcome here is that we retain bases in Iraq for as long as the nation-building mission lasts. Of course, that could be a generation (30 years). At that point, there may be just a semantic difference between calling these permanent bases and bases dedicated to rebuilding Iraq.

Monday, April 21, 2003

Restoring the rule of law to Iraq

UCLA professor and Islamic law expert Khaled Abou El Fadl has a great essay in today's Wall Street Journal (subscription required) on something I've written about before: the rule of law in Iraq. Prof. El Fadl brings a wealth of knowledge on Islamic law to the subject, as the preeminent American scholar on this subject, and he has some great descriptions of the problem and prescriptions for its remedy.
Iraq has had a long and rich jurisprudential experience. Before Saddam came to power, the country, along with Egypt, was one of the most influential in the development of the legal institutions and substantive laws of the Arabic speaking world. A high level of education was enjoyed by the Iraqi elite, and Iraqi legal thought was characterized by a lack of xenophobic nativism. Being geographically at the intersection of Arab, Persian, Kurdish, and Turkish cultures, the country has been home to both Shiite and Sunni centers of religious study.

After gaining independence from Britain in 1930, Iraq, like most Arab countries, adopted Civil Law and Criminal Law Codes, which were adapted from the French and Germanic legal systems. Iraq's personal law, however, continued to be based primarily on Islamic law, feeding a thorny relationship between Iraq's Islamic legal heritage, and the legal system borrowed from Europe. Making the situation more difficult, in Iraq, as in many other Muslim countries, there were socio-political pressures to simultaneously Islamize and modernize.

Keeping all this in mind, the evolution of Iraq's new legal system will have repercussions for the entire region. The urban centers of Iraq, Baghdad, Basra, and Kufa played central roles in the birth of Islamic jurisprudence, and they continued to play a leading role in the development of the institutions and doctrines of Islamic law. Iraq's intellectual heritage, especially as it relates to Islam's divine law, continues to carry considerable moral weight within the Muslim world.
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Today, there is little doubt that many Iraqis aspire to a democratic order that would guard against the kind of abuses that they have had to endure. They must overcome the absolute jurisprudential impoverishment that they suffered under the Baath, while reclaiming their creative legacy. They must find justice while avoiding vengeance. And they must relearn how the law can be used as a shield and tool in the hands of the people rather than a sword of the state.
Analysis: I had no idea that Iraq had such a rich legal tradition. But it makes sense. Iraq, after all, can trace its legal lineage all the way back to Hammurabi's Code. Tradition matters a great deal in the law, and having such legal myths to ground Iraq's future laws in will make a big difference. It may be easier to build a new legal tradition grounded in the old; such a system will inherit the legitimacy of this old system if done correctly. Rather than simply graft an American Constitution onto the Iraqi people, we should take care to heed Prof. El Fadl's advice.
Why casualties were so low in Iraq

USA Today provides a good analysis today of the reasons why American casualties were relatively low in Iraq. Among other things, the American strategy of sending firepower instead of manpower combined with the skill of American soldiers on the ground to produce such a lopsided victory -- with very low casualties. As I've written before, American officers have learned for two generations since Vietnam that it's better to send a bullet than a man. Rather than fight toe-to-toe slugfests, American military officers prefer to back off, pound the enemy with precision airpower and artillery, and "set the conditions" for a ground assault. This is basically what we did with respect to the Republican Guard, and it worked.
The reason for the decline in casualties: A soldier-saving approach permeates the post-Vietnam War military. The philosophy starts at the top with strategy, tactics and expensive weaponry. It extends to the battlefield with better communication, improved equipment and state-of-the-art medical care.

The result is not just military superiority but an overwhelming dominance that results in what military experts call a low loss ratio. That ratio is the number of U.S. troops lost compared with the number they kill.

This war's lopsided loss ratio has precedents, but they are rare and often long ago, German military scholar Ralph Rotte says. He cites the Battle of Omdurman in 1898 in the Sudan: The British, armed with rifles and machine guns, routed Sudanese tribesman armed mostly with swords and lances.

"The American way of war substitutes firepower for manpower," says retired Army general Bob Scales, former commandant of the Army War College in Carlisle, Pa."We expose as few troops as possible to close contact with the enemy. We do that by killing as many enemy as we can with precision weapons."

The strategy of long distance lethality saved many allied soldiers, sailors, airmen and Marines.

Soldiers "do lunch" with Iraqi leaders

Guy Taylor, who's embedded in the Army's 4th Infantry Division, reports from Iraq that American officers have taken the initiative to set up lunch meetings with local leaders in Tikrit, the hometown of Saddam Hussein. The meetings are designed to built rapport between the American and Iraqi leadership, and to forge cooperative agreements for future governance and security.
Similar to the daily whirl of conferences under way in Baghdad between military officials and community leaders, the meeting in Tikrit was the first of many in a town where garnering support for Operation Iraqi Freedom may prove difficult.
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Soldiers (also) met yesterday with Baghdad community leaders to discuss security concerns, while the U.S.-run Information Radio station read a statement announcing an 11 p.m.-to-6 a.m. curfew.
Analysis: To the casual observer, these meetings may seem like innovations on the ground by the 4ID leadership. Without taking anyway from my former comrades, I think these guys are acting from the Army's playbook. At the National Training Center, Army brigade combat teams train on exactly this kind of thing during the 5 days before they head into the maneuver box. There, Army officers learn to meet with local leaders, establish rapport, trade favors, and build the kind of civil-military relationship necessary to bridge the gap between two cultures. Specifically, when I went through this training experience I learned how to build liaison with local police to ferret out terrorists and supporters in the host-nation population. I imagine that's exactly what's going on now, in Tikrit and Baghdad. Even if Washington and Baghdad don't see eye-to-eye, junior officers can still make this happen at their level, where American lieutenants and captains talk to Iraqi lieutenants and captains.
Reducing the size of America's footprint in the Middle East

Esther Schrader reported in Sunday's Los Angeles Times about some interesting plans within the Bush Administration to reduce the American presence in the Middle East. The plans follow in the wake of America's victory over Iraq, which until now, has provided the reason for a constant U.S. presence in Kuwait, Saudi Arabia, Qatar, Bahrain and Turkey.
Last week's quiet removal of 30 of the 80 fighter jets and almost half the 4,500 personnel from Incirlik Air Base in Turkey, where the U.S. has maintained thousands of troops since the 1991 Persian Gulf War, is just the beginning, officials said.

Within months, the Pentagon plans to close down most of its operations at Prince Sultan Air Base in Saudi Arabia, leaving only a skeleton crew, and to move most of its aircraft and troops out of Qatar and Oman.

The plans, which are preliminary and subject to review, are a response to pressure from Arab governments incensed by the U.S. military buildup in the region over the last 12 years, the financial burden of maintaining vast numbers of troops overseas and the strain it has caused for families and military readiness.
Analysis: This is an extremely important development on so many levels. In one sense, it may seem like a capitulation to Arab anti-American sentiment, particularly the calls by Osama Bin Laden for America's expulsion from Saudi Arabia. On another level, this could be a calculated move by the United States to reduce its connections to the Middle East in order to fence American interests from that turbulent region. If followed by moves to reduce American reliance on fossil fuels (especially those from the Middle East), this could be a very positive long-term development. The wild card in the deck is the Israel/Palestine issue. America has to seize this opportunity now to push a peace process forward, or else that region will form the next flashpoint for conflict in the region. Until now, American troops in the region have had a stabilizing effect on that conflict, especially on the Israelis. Pulling American soldiers out of these countries may destabilize the region, and we must counteract that trend with diplomacy and force as necessary.