Friday, June 27, 2003

A U.S. led permanent peacekeeping force?

Esther Schrader reports in the Los Angeles Times that this is exactly what Secretary of Defense Donald Rumsfeld has in mind. Such a force could be deployed in hotspots like East Timor, or as a follow-on force to places like Iraq.
The force would operate outside the auspices of the United Nations and NATO and would include thousands of U.S. Army troops trained for, and permanently assigned to, peacekeeping work.

Such an undertaking would represent a major reversal by the Bush administration, which came into office deeply opposed to tying up U.S. military forces in international peacekeeping operations.

The plan would probably be opposed by the Army, which has resisted efforts to have its troops drawn into peacekeeping duties.

There are other obstacles as well. Some analysts question how many nations would sign up for such a force if it were under the control of the United States, whose willingness to collaborate with other countries is highly suspect in many parts of the world.Query: Why doesn't the Army just do this on its own? Why not realign part of the force structure to build brigade-sized task forces of MPs, Civil Affairs, Engineers, Medical and other specialty units needed for peacekeeping? I think the multilateral component is useful for political reasons. But if we see a need for this kind of force, we ought to build it ourselves.
Coda to my note on Lawrence

Several learned readers wrote me with questions and critiques related to my thoughts on Lawrence. I'd like to address a couple of them, since I thought they were particularly good.

1) Doesn't a challenge need a plaintiff? Yes, it does. Various judicial doctrines require someone to actually be affected by a policy in order to sue the federal government. In this case, that means that someone who challenges the "don't ask, don't tell" policy needs to have been affected. I see two classes of potential plaintiffs:
- Gay men and women currently serving in the military who feel the current policy burdens their fundamental rights to intimate sexual relations, but who have not been detected or discharged yet.
- Gay men and women who served on active duty but did come to the attention of their superiors, either by statement, act or marriage. (See 10 U.S.C. Sec. 654 for its definition of what counts)
Unfortunately, there are no shortage of either group of plaintiffs. I knew a few gay soldiers and officers in the Army, and I imagine there were many more I did not know. The latter category includes several thousand men and women from the last decade alone, according to the Servicemember's Legal Defense Network. (See, e.g., the 7 military linguists discharged from the Defense Language Institute.)

2) The decision doesn't expressly overrule the military's policy -- how can it apply? The Court went further in Lawrence than it ever has before in the area of personal liberty, and specifically, sexual liberty. Justice Kennedy's opinion includes extremely broad language of the sort I remember reading in Brown v. Board of Education, or Miranda v. Arizona. This language will now form the foundation of any legal challenge to the policy, and lower courts will be bound by the parameters set forth by Justice Kennedy:
"Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
* * *
"The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their exis-tence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

"Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.
This is extremely broad language for the Court, and I think it's all but certain that it would help a plaintiff overturn the ban. Remember, this is not the kind of case where you would need to analogize between the facts of Lawrence and the facts of a challenge to the military's ban. Once the Court recognizes the fundamental right, the challenge may occur in all sorts of contextual contexts. Subsequent courts need only apply the "strict scrutiny" test to the law burdening the fundamental right in order to see if the law will stand. I'm no expert on the subject (for real expertise, see Eugene Volokh and Jack Balkin), but I'm pretty sure this decision is the death knell for the military's current policy.

3) What about discrimination in other contexts? Some lower courts have upheld decisions by adoption agencies and other administrative bodies to deny certain rights and privileges to gays because, inter alia, their conduct could be criminalized. I think that Lawrence also means the end of these laws as well. If you cannot criminalize this conduct anymore, and indeed, if such conduct is a fundamental right, then it follows that these kinds of policies can't stand either. However, there may be some more to these laws that I don't understand, so I defer to the real experts in the family law area.

4) What about colleges who don't want ROTC? I agree with Mark Kleiman here -- I think this is going to be the battleground on this issue in the next 5 years. Universities like UCLA currently accept the military's presence because federal law threatens the withholding of their federal research and financial money if they don't let them on. In many situations, e.g. UCLA and Berkeley, the requirement to allow the military on campus clashes with the university's policy against discrimination on the basis of sexual orientation. It's as if federal law required these colleges to allow a law firm on campus to recruit when that firm refused to hire minorities. I think it's likely that some universities will now challenge that federal law, known as the "Solomon Amendment", on the basis that it is unconstitutional per Lawrence. I'm not sure whether the underlying policy would need to be banned first, or whether the universities could challenge the Solomon Amendment beforehand. But I think it's a safe bet that we will see this issue resurface on college campuses in the near future.

That would be unfortunate, both for the universities and the military. Here, I speak not from a legal perspective but from that of an Army officer who graduated from UCLA with a liberal education. The institutions most likely to kick the military off campus are the institutions we most need represented in our military. When the Harvards and Berkeleys no longer produce military officers, the military suffers a great deal. In many ways, these officers raise the intellectual bar within the military, liberalizing it on the margins and adding something that would not otherwise be there. To be sure, West Point is a fine institution that produces amazing leaders. But they do not come to the Army with the same diversity of perspective and experience that officers from civilian universities do. That experience can be useful when building a cohesive unit to fight a war. But this diversity of experience critically important when dealing with complex nation-building missions like the one in Iraq right now. I hope that university leaders pursue a path of moderation on this policy, seeking the best answer for their institutions and for the military.

Thursday, June 26, 2003

What will the Supreme Court's decision mean for the military?

Today, the Supreme Court held that the Constitution protects the liberty of homosexual persons to engage in "intimate conduct" in accordance with their personal preferences. Writing for the majority, Justice Anthony Kennedy effectively demolished the Court's precedent from Bowers v. Hardwick, expressly overruling it and its holding that states could regulate the conduct of homosexual persons.

What does this mean for the current law banning gays in the military?

That ban exists as a matter of federal law -- 10 U.S.C. 654 -- and presumably can be overruled by a decision of the Supreme Court. I think that one of the first effects of Lawrence will be to trigger a challenge in U.S. District Court to the current policy banning gays in the military. That challenge will essentially cite Lawrence for the proposition that homosexual conduct is a fundamental right that the state cannot burden without some compelling interest -- and that the restrictions must be narrowly tailored to that compelling interest. The plaintiffs will argue that this policy (the "Don't ask, don't tell" policy) burdens the right of gay soldiers to engage in the conduct they want to, and that such a burden on a fundamental right is unconstitutional. Given the Court's holding today in Lawrence, I think that a lower court would almost certainly side with the plaintiffs.

The only possible savior for the military's ban will be the "national security" deference sometimes given to the Executive Branch and the military by the courts. In recent cases, such as challenges to President Bush's war on Iraq, the courts have expressly deferred to executive judgment on military matters, and left such issues to be decided by the political branches. Such "national security" deference was also invoked by the Supreme Court in Korematsu v. United States, where the Court upheld the detention of Japanese-Americans during World War II.

However, I don't think such deference will save the ban on gays in the ranks. The Court has held in religious freedom cases that the military can curtail certain personal freedoms, such as the right of Jews to wear certain religious garb. However, this is different. This ban places much more of a burden on the rights of gays than the military's uniform policies do, and this ban has a much more drastic effect (automatic discharge). After reading the Court's opinion in Lawrence, I think it's likely that this ban will be struck down as unconstitutional.
Read 'em yourself!

Slowly, like a glacier, our government is opening itself to the public. I've already praised the Pentagon's webpage as a great resource for reporters and citizens alike. Today I'd like to call your attention to the Supreme Court's site, which should get a lot of traffic today as the Court announces some major decisions.

The Court posts its recent opinions on this page, in PDF form, as they will look in the official U.S. Supreme Court case reporter.

Two other sites also deserve mention. The Legal Information Institute at Cornell has a great repository of Supreme Court cases, and I like the way they break up their cases by type of opinion (majority, concurrence, dissent, etc), and post them in both HTML and PDF format. Findlaw.Com is also a great resource for those who want to read these pieces of history themselves. Findlaw also has a great Constitution page that contains an annotated version of the Constitution -- in case you want to know the legal rulings behind a particular clause.

So when the Supreme Court announces its decisions (and maybe retirements) today, don't take my word for it -- see for yourself. And them read them for yourself. Our society claims to live by the rule of law. I think it's a great idea for everyone to understand how the way these laws are translated into living documents by the Supreme Court. There's no better way to do that than to read the Court's decisions.

Tuesday, June 24, 2003

Dick Gephardt and Harry Truman -- at odds with the Supreme Court?

Eugene Volokh and Glenn Reynolds (among others) have rightfully questioned an assertion by Democratic presidential contender Richard Gephardt that he would "do executive orders to overcome any wrong thing the Supreme Court does." The statement was made, presumably, to persuade Democratic audiences that Gephardt would fight for their interests despite the conservatives appointed to the Supreme Court and lower courts over the last few decades. Eugene and Glenn were right to point out that "you can't overturn a Constitutional decision by the Supreme Court with an executive order."

Today, Gephardt's campaign responded to The Note, an ABC News weblog.
"The fact that this question comes from libertarian law professors should speak for itself," spokesman Erik Smith wrote in an e-mail. "Dick Gephardt knows the law. The president can not overturn a Supreme Court decision. That's not what he said. He was simply expressing his commitment to diversity and his willingness to use the tools of his office to promote affirmative action programs to the fullest extent possible. It's important to remember that Harry Truman used an executive order to integrate the military."
Eugene responds, correctly I think, that Truman's executive order to desegrate the military came at a time when the Supreme Court was already moving in that direction. As a legal matter, the order also did not contravene any decisions of the Court, nor did it directly contradict anything passed by Congress. [Arguably, Congress did endorse a segregated military through its appropriations and oversight legislation, but it did not directly contradict President Truman's order once issued.]

My two cents... Harry Truman makes for an interesting choice of precedent for the Gephardt campaign. It is true that he issued Executive Order 9981, effectively ending segregation in the military, when Congress and the Supreme Court did not do so. This was an act of courage and principle for a President who had lots of both.

Harry Truman is also famous for another Executive Order -- one held to be unconstitutional by the Supreme Court. Executive Order No. 10340 (16 Fed. Reg. 3503) directed Secretary of Commerce Charles Sawyer to seize the Youngstown Co. steel mill after its labor force threatened a strike during the height of the Korean War. The mill owners and labor unions sued President Truman, claiming this order was an unconstitutional extension of the President's power to make laws, execute laws, and act as Commander-in-Chief under Art. II. The Supreme Court agreed, holding that President Truman did not have the power to act as he did. To this day, the "Steel Seizure Case" (especially Justice Jackson's concurrence) remains the Court's primary guidance to the Executive and Legislative branches on the boundaries of their power.
The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. 343 U.S. at 588
* * *
The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand. 343 U.S. at 589
There is great irony in the assertion by Dick Gephardt's campaign that he would follow the example of Harry Truman with respect to Executive Orders. Harry Truman did some great things unilaterally, such as his desegregation of the military and recognition of Israel, among others. But we can also learn what presidents cannot do from Truman's experience in the White House. I hope that Mr. Gephardt learns those lessons as well.
How much did the "green brief" help the Court decide Grutter?

And what lessons can we learn from the military on issues of race?

Yesterday's decision by the Supreme Court in Grutter v. Bollinger simultaneously clarified and muddied the waters for affirmative action in the United States. The Court issued two doctrinal issues, which may be very helpful for lawyers and educators in the future:

1) The Court will look at affirmative action programs with "strict scrutiny", and that such scrutiny is not always "strict in theory, fatal in fact." This issue was somewhat clear after the Court's decision in Adarand v. Pena, but not entirely so because of the muddy way the Bakke case (the last case on affirmative action in education) applied its legal test.

2) Diversity can be a compelling interest for institutions of higher education to pursue with their admissions policies. This is very important, because it blesses one of the two main goals of affirmative action. (The other one being to remedy past disadvantage) However, the decision did not say whether colleges can use diversity as a compelling interest for the hiring of professors or other staff. That may become a battleground in lower courts on this issue.

However, to pass strict scrutiny, a program must be "narrowly tailored" to a "compelling government interest." On this second prong, the Court found the U.Michigan undergraduate program unconstitutional (see Gratz v. Bollinger), and the law school's program constitutional. In her majority opinion in the law school case, Justice Sandra Day O'Connor appears to have relied heavily on claims by business and military leaders that affirmative action in colleges helps them recruit a diverse work force.
The Law School's claim of a compelling interest is further bolstered by its amici, who point to the educational benefits that flow from student body diversity. In addition to the expert studies and reports entered into evidence at trial, numerous studies show that student body diversity promotes learning outcomes, and "better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals." Brief for American Educational Research Association et al. as Amici Curiae 3; see, e.g., W. Bowen & D. Bok, The Shape of the River (1998); Diversity Challenged: Evidence on the Impact of Affirmative Action (G. Orfield & M. Kurlaender eds. 2001); Compelling Interest: Examining the Evidence on Racial Dynamics in Colleges and Universities (M. Chang, D. Witt, J. Jones, & K. Hakuta eds. 2003).

These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. Brief for 3M et al. as Amici Curiae 5; Brief for General Motors Corp. as Amicus Curiae 3—4. What is more, high-ranking retired officers and civilian leaders of the United States military assert that, "[b]ased on [their] decades of experience," a "highly qualified, racially diverse officer corps ... is essential to the military's ability to fulfill its principle mission to provide national security." Brief for Julius W. Becton, Jr. et al. as Amici Curiae 27. The primary sources for the Nation's officer corps are the service academies and the Reserve Officers Training Corps (ROTC), the latter comprising students already admitted to participating colleges and universities. Id., at 5. At present, "the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC used limited race-conscious recruiting and admissions policies." Ibid. (emphasis in original). To fulfill its mission, the military "must be selective in admissions for training and education for the officer corps, and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse setting." Id., at 29 (emphasis in original). We agree that "[i]t requires only a small step from this analysis to conclude that our country's other most selective institutions must remain both diverse and selective." Ibid.
Analysis: The amicus brief cited by the Court was called the "green brief" by many because it was submitted by a number of retired military officers, including Gen. Norman Schwarzkopf and others. (military = green) The brief was written by veteran Supreme Court litigator Carter G. Phillips. I found the brief to be exceptionally well written, and quite well grounded in facts. America's military is incredibly diverse, although a schism exists between the enlisted ranks and officers when it comes to racial and ethnic diversity. This has the potential to create social problems within the ranks. Recognizing this, America's military has conscientously recruited minorities for its leadership ranks (enlisted and officer), and developed programs to retain the best minority NCOs and officers as they rise through the ranks. Those programs implicitly depend on the presence of minority college graduates who can be recruited as officers.

However, I don't think Justice O'Connor's citation to the green brief in Grutter was necessarily right, for the following reasons:

1) It was odd to cite the green brief in the law school decision when the brief was clearly aimed at the undergraduate case. America's military takes some lawyers and professionals from graduate school, but not many. It recruits the vast majority of its officers from ROTC programs at public and private universities across the country. The next sizable chunk comes from the military academies. These schools, by virtue of their size, tend to rely on the sort of mechanical affirmative action programs the Court held unconstitutional in Gratz (the undergrad case). I understand that Justice O'Connor wanted to cite the most persuasive authority possible in her opinion upholding the law school's program, but the citation to the green brief seems misplaced to me.

2) The demise of U.Michigan's undergraduate program -- and all mechanical affirmative action programs like it -- will certainly create problems for the military and its recruitment of minority officers. As Eugene Volokh points out, large schools universally use such programs to sort through the thousands of applications they get each year. (I found this to be true when I wrote my thesis on affirmative action in the UC system in 1996) In the short term, colleges will have to figure out some other way to do affirmative action that looks more like the U.Michigan law school than the U.Michigan undergrad system. In the short term, that may result in less minority students being admitted to these universities, as we saw in California after the regents banned affirmative action in 1995 (and Prop. 209 passed in 1996). That, in turn, may result in less minority students for ROTC programs to recruit in colleges, particularly the top colleges like Berkeley, UCLA and Michigan. Ultimately, that's bad for the military, because such officers tend to bring a very important, liberalizing, intellectual component to the service.

3. Interestingly, the U.S. District Court for the District of Columbia held some of these programs to be unconstitutional in Saunders v. White last year because the Army had gotten so good at diversity that it no longer needed some affirmative action programs. Sociologists Charlie Moskos and John Butler wrote a great book on the military's successes in this area called All We Can Be: Black Leadership and Racial Integration the Army Way. The military has come a long way since the days when then-LT Colin Powell faced discrimination while stationed at Fort Benning, Georgia, in the early 1960s. Today's force has roughly reached parity, where the percentages of minority officers equals the proportion of available in the college graduate pool (with some variations by ethnic group). The senior NCO corps is an even greater success story, where minorities are significantly overrepresented in relation to their percentage of American society.

In many ways, I think the Army provides a good road map for the rest of society on matters of racial and ethnic diversity. Our military has taken race into account over the last 30 years to correct imbalances at all levels, and it has worked. It may now be time to remove some of those programs, or target them more effectively at groups that remain disenfranchised from the Army leadership (Latinos and Asians, for example). The ultimate irony of the military's success is that it has done well by providing economic and educational opportunities to young Americans who would not otherwise have such opportunity in our colleges and businesses. The military has even taken fire critics who say that such opportunities disproportionately draw too many minorities into the line of fire. This was what fueled Rep. Charlie Rangel's call for a national draft earlier in the year.

Maybe this decision will open more doors to minorities in education and other areas, so that they don't have to choose between a life of economic hardship and a life of soldiering -- but I doubt it. America's military still offers opportunities for adventure, training and service that our colleges do not. For the foreseeable future, I think that young men and women will join the military for things they can't get in college, and they will leave the service enriched by their experience.

More to follow...

Monday, June 23, 2003

U.S. government detains a third "enemy combatant"

The Washington Post reports tonight (and on tomorrow's front page) that the Bush Administration has transferred another man from Justice Department custody to that of the Defense Department -- labeling him an "enemy combatant." Ali S. Marri was originally arrested in Dec. 2001 and charged with lying to the FBI about contact with known terrorists. He was transferred yesterday from a federal jail in Illinois to a military brig at an undisclosed location. Marri has been deemed an "enemy combatant" by the President, joining Yasser Hamdi and Jose Padilla as alleged terrorists who have been so labeled by the Bush Administration.
Bush designated Marri an enemy combatant yesterday morning after federal prosecutors in Illinois dropped charges of false statements to the FBI and credit card fraud. Alice Fisher, deputy assistant attorney general for the Justice Department's criminal division, said prosecutors were confident they could have prevailed in court. She said they decided to forgo the charges in an effort to deter terrorist attacks.

She declined to elaborate. "We make these decisions on an individual case-by-case basis, taking national security into account," Fisher said.

Marri's lawyer, Lawrence Lustberg, said in an interview he plans to challenge the enemy combatant designation. He said the designation unfairly deprives Marri of legal rights, including access to counsel, and amounts to "end-running the legal system." Lustberg said he believes the administration acted because "we were raising powerful legal challenges" to the government's allegations of false statements.

"If the government had proof he was involved in terrorism, they would have charged him with that, but they didn't," Lustberg said. He said he had heard nothing from the government or his client to indicate that Marri acted as a U.S. facilitator for al Qaeda operatives or was a "sleeper" operative.

Law enforcement officials disclosed new details about Marri's alleged activities yesterday. They said al Qaeda assigned Marri, a graduate student in computer science at Bradley University, to explore ways to hack into the computer systems of U.S. banks. They also said his computer showed he had frequently visited Web sites dealing with the production of hydrogen cyanide, an extremely lethal gas that al Qaeda allegedly had plotted to use. Fisher said prosecutors do not believe Marri had been "specifically tasked" to plot a chemical or biological attack in the United States.
More to follow tomorrow...
Time to bring home the 3rd Infantry Division

The Evening Standard, a British newspaper, has a disturbing piece on the soldiers of B Company, 3-15 Infantry, 3rd Infantry Division, from the sands of Iraq. This piece does not mince words about what's going on with these men in the desert. Instead, it lays out their thoughts and feelings on war and peace in the language of a soldier -- raw, coarse and honest.
What they told me, in a series of extraordinary interviews, will make uncomfortable reading for US and British politicians and senior military staff desperate to prevent the liberation of Iraq turning into a quagmire of Vietnam proportions, where the behaviour of troops feeds the hatred of an occupied people.

Sergeant First Class John Meadows revealed the mindset that has led to hundreds of innocent Iraqi civilians being killed alongside fighters deliberately dressed in civilian clothes. "You can't distinguish between who's trying to kill you and who's not," he said. "Like, the only way to get through s*** like that was to concentrate on getting through it by killing as many people as you can, people you know are trying to kill you. Killing them first and getting home."

These GIs, from Bravo Company of the 3/15th US Infantry Division, are caught in an impossible situation. More than 40 of their number have been killed by hostile forces since 1 May - when President Bush declared major military operations were over - and the number of hit-and-run attacks is on the increase. They face a resentful civilian population and, hiding among it, a number of guerrilla fighters still loyal to the old regime. A lone Iraqi sniper nicknamed The Hunter is believed to have claimed his sixth American victim this week in a suburb of Baghdad.

The man, said to be a former member of the Republican Guard Special Forces, has developed a cult status among some Iraqis. One Baghdad resident, Assad al Amari, said: "He is fighting for Iraq on his own. There will be many more Americans killed because they cannot stop The Hunter. He will be given the protection of people who will let him use their homes for his shooting."

In this hostile atmosphere the men of Bravo Company are asked to maintain order, yet at the same time win hearts and minds. It is not a dilemma they feel able to resolve. They spoke to me - dressed in uniforms they have worn for the past six weeks - at their base in Fallujah. Here US troops killed 18 demonstrators at a pro-Saddam rally soon after the war and now face local fighters bent on revenge.

Their attitude to these dangers is summed up by Specialist (Corporal) Michael Richardson, 22. "There was no dilemma when it came to shooting people who were not in uniform, I just pulled the trigger. It was up close and personal the whole time, there wasn't a big distance. If they were there, they were enemy, whether in uniform or not. Some were, some weren't."
* * *
Cpl Richardson added: "That day nothing went with the training. There were females fighting; there were some that, when they saw you f****** coming, they'd just drop their s*** and try to give up; and some guys were shot and they'd play dead, and when you'd go by they'd reach for their weapons. That day it was just f****** everything. When we face women or injured that try to grab their weapons, we just finish them off. You've gotta, no choice."

Such is their level of hatred they preferred to kill rather than merely injure. Sgt Meadows, 34, said: "The worst thing is to shoot one of them, then go help him." Sergeant Adrian Pedro Quinones, 26, chipped in: "In that situation you're angry, you're raging. They'd just been shooting at my men - they were putting my guys in a casket and eight feet under, that's what they were trying to do.

"And now, they're laying there and I have to help them, I have a responsibility to ensure my men help them." Cpl Richardson said: "S***, I didn't help any of them. I wouldn't help the f******. There were some you let die. And there were some you double-tapped."

He held out his hand as if firing a gun and clucked his tongue twice. He said: "Once you'd reached the objective, and once you'd shot them and you're moving through, anything there, you shoot again. You didn't want any prisoners of war. You hate them so bad while you're fighting, and you're so terrified, you can't really convey the feeling, but you don't want them to live."
Analysis: I can't condemn these men for saying what they feel, or feeling what any honest infantryman would feel after fighting his way into a nation like Iraq. They have seen carnage I can't imagine, both in the Iraqis they killed and the Americans they watched die. After training in the desert for 9 months and fighting their way to Baghdad, it's natural that these men would feel the way they do.

Those feelings can only be exacerbated by the weeks of "peace" keeping since President Bush declared an "end" to combat on 1 May. American soldiers have continued to fight a shadowy war since 1 May, chasing ghosts of Saddam and taking fire from the shadows. The armored dash across the desert may be over, but the fighting is certainly not. Arguably, the current military situation does more psychological damage to soldiers than open combat, where lines are more clearly drawn and safety can be calculated as a function of distance from the enemy. On the streets of Baghdad, there is no safe place -- no refuge for the mind or body.

In time, these men's minds and bodies will probably heal, although they will never again be whole. Unfortunately, American policymakers do not have the luxury of time. Every day we let these men patrol Baghdad represents a significant operational and strategic risk for our occupation of Iraq. B/3-15 Infantry is ready to come home. Their soldiers and leaders are fatigued, and stretched to the breaking point. It's a testament to American society and our Army's training that these men have not broken yet; that they have not committed some unspeakable act against the Iraqis for the world to watch on CNN.

Bottom Line: It's time to bring these men home. They've accomplished their mission, fighting what Max Boot called in the latest Foreign Affairs issue "one of the signal achievements in military history." But now they need to be relieved in place -- either by active forces, reservists, or our NATO allies. Studies of war have shown that fighting units need to be replaced after a period of days in contact -- no matter how elite, how well-trained, or how well-disciplined. (See, e.g., Acts of War by Richard Holmes and On Killing by David Grossman.) Morale, cohesion, and effectiveness simply break down after prolonged exposure to combat. This is true of low-intensity and high-intensity combat.

At some point, the 3rd Infantry Division will become combat ineffective as a result of stress and prolonged exposure to war. This is the human dimension of war, and it's often neglected by policymakers who would like for war to be something sterile fought by machines. We must recognize the human reality of war and bring these men home.
An American warrior

Americans are not warlike by nature, but our generals have always captivated us. From Washington to Jackson to Pershing to Patton to Schwartzkopf, our military has been led by colorful characters who, in turn, have inspired public pride in the military. (Others, such as McClellan and Westmoreland, have inspired contempt, showing that Americans can also show disdain for their generals when they want to.) Gen. Tommy Franks, commander of Central Command, fits squarely in this former category. Today, the Washington Post profiles the man who has led American forces to military victory in Afghanistan and Iraq.
The arc of his four-star career -- after the Army sent him back for his college degree -- took Franks to commands around the world. Those who know him have enjoyed the warm friendship of a guy who likes to give bear hugs, can shed tears over wounded soldiers, break into a country tune over a margarita, puff a cigar while strolling through one of Saddam's palaces with a pistol stuck in his belt, or pose for a snapshot after a swim in a Texas lake with fellow officers -- on horseback, and stark naked except for a Stetson.

They also glimpsed other traits that helped take him to the top -- personal courage, aggressiveness, determination to do the right thing, serious smarts.

Retired Gen. George Crocker recalls Franks as a captain in Germany in the 1970s when the Army was "rife with drugs. There were major race riots, a battalion commander was shot on the parade field by his own men."

Franks had taken command of an artillery battery and was chatting with the first sergeant when they heard a fight break out upstairs, Crocker recounts. The sergeant advised letting it go because it was "just the alkies and the druggies fighting."

"Not in my battery," Franks proclaimed, grabbing a length of steel pipe and charging upstairs to break up the fight and restore order.

"He was never afraid to take risks," Haynes, the former personal aide, recalls. "When we went to Afghanistan a few times early on, it was risky, [but] he'd visit the troops just to say, 'Thanks, be proud of who you are. . . . I'm going to come around and hug every one of you.' There'd be 1,000 people there, it would be 112 degrees in some airplane hangar and I could see he was just beat, but he really enjoyed doing that."

Retired Gen. Crosbie Saint recalls how Franks figured ways to keep artillery near enough to rapidly moving battle lines to always provide fire support "in 15 or 20 seconds." Franks also found a way to hit moving targets such as enemy tanks with artillery fired from far away.

"He's the kind of guy," Saint says, "if you say you want to move a mountain, he'll say, 'How far do you want to move it?' "

"He leads from up front," says retired Gen. John H. Tilelli Jr., commander of the 1st Cavalry Division during the 1991 Gulf War when Franks was his key assistant division commander. "He's not afraid . . . . When you think of senior people, they don't have to put themselves in harm's way -- but he goes where the action is."
Thoughts... The American military has radically changed itself over the last 30 years since Vietnam. (See Prodigal Soldiers by James Kitfield for a great history of these changes.) It has become a more educated, professional, intellectual, and well-managed force. Its volunteer officers and senior enlisted soldiers are extremely good at what they do, and the military devotes an enormous about of resources to training/educating them to become even better. Tommy Franks had the raw material as a young lieutenant and captain to become a great leader. But he would not have become one if not for the mentoring, training and education he got along the way. When I read his profile, I was impressed by the way the Army plucked him like a diamond in the rough -- schooled and polished him -- and eventually produced a warfighter who could lead hundreds of thousands.
Looking for legal commentary?

The decisions handed down today by the Supreme Court are obviously what most newspapers will lead with tomorrow. I have some thoughts on the Michigan case, but I'll reserve them for later. Instead, I recommend turning to the following pages for intelligent commentary on these cases:
- The Volokh Conspiracy: run by Eugene Volokh, a constitutional law expert at UCLA Law School, with guest commentary from several other law professors

- Balkinization: run by Yale Law Professor Jack Balkin, who usually has a perspective no one else has thought of on legal subjects.

- Instapundit: In addition to being the capo di tutti capo of bloggers, Glenn Reynolds is a law professor.

- SCOTUS Blog: Run by a boutique appellate practice in DC that makes its living following the Supreme Court and arguing cases there.

- Actual Malice: written by a New York City media attorney, this blog will probably have great commentary on the Court's library/porn decision today.
As always, copies of the decisions are available on the Supreme Court's site and the Findlaw site, in PDF form. I will read the decisions later today and offer my thoughts afterwards. More to follow...

Sunday, June 22, 2003

Foreign fighters complicate the mix in Iraq

The New York Times reported on Sunday about a very ominous development in Iraq -- the presence of foreign guerillas in the midst of American forces. This is an extremely significant development, because the presence of foreigners tends to signify two possibilities. First, it signals that a transnational movement of young armed men is taking place -- and that they're migrating towards Iraq. Second, it may indicate a resurgence of Al Qaeda in Iraq. After all, Al Qaeda began as a transnational guerilla force of "Afghan Arabs" who successfully fought the Soviets in Afghanistan. The influx of foreign Arab guerillas to Iraq seems eerily familiar, given the institutional history of Al Qaeda.
Military officials say that American troops in Iraq have had to contend with Syrians, Saudis, Yemenis, Algerians, Lebanese and even Chechens.

Many of these fighters took up arms against the United States during the American thrust to Baghdad. A significant number remain, and a new effort is under way to lure more to Iraq to join the fight against the Americans, officials say.

"You have got Baath Party and regime loyalists west and northeast of the city who are calling buddies in foreign countries and getting fighters to come across the border," Maj. Gen. William Webster, deputy commander of the allied land command, said in an interview. "They are also rounding up those who are already here and issuing them weapons."

New evidence about the role of foreign fighters, including passports and other documents, was gathered after the American air and ground attack last week on a militant camp at Rawa, about 150 miles northwest of Baghdad. According to American military commanders, two wounded foreigners were also captured — a Saudi and a Syrian.

American officials said the two captives had told them that they were offered money to come to Iraq and kill American soldiers.

Foreign fighters played an important role during the war. Busloads of fighters drove in from Syria and fought soldiers from the Army's Third Infantry Division who pushed into the center of Baghdad. American soldiers confirmed their nationality by retrieving passports from bodies of dead fighters.
Analysis: This is going to become a major issue for America in the coming weeks and months. We must quarantine Iraq from the outside influences that may seek to push it down a particular path -- whether it's Shiite or Sunni fundamentalism, or some other plan. If nothing else, we must do so because these foreigners bring with them weapons and training that subsequently get used against our own soldiers. Given a finite amount of men and materiel inside Iraq, we will eventually root out the guerillas now harassing our forces. But as we saw in Vietnam, it's impossible to conduct a counter-insurgency campaign when the insurgents continue to multiply and resupply. These outsiders appear to be fulfilling that function inside Iraq, and it must be stopped.
Al Qaeda operative pleads guilty to charges

But what did the U.S. use as leverage to get the guilty plea?

By now, most have heard about the plea bargain by Al Qaeda operative Iyman Faris, a 34-year-old naturalized citizen from Ohio who was planning to bomb the Brooklyn Bridge. Apparently, detained-Al Qaeda leader Khalid Sheikh Mohammed fingered Mr. Faris for his inchoate plan to destroy the landmark bridge. (Mohammed is being held at an undisclosed location by American intelligence officers who, presumably, are interrogating him for every detail he knows about Al Qaeda.)
Prosecutors said Mr. Faris traveled in Afghanistan and Pakistan beginning in 2000, meeting with Osama bin Laden and working with one of his top lieutenants, Khalid Shaikh Mohammed, to help organize and finance jihad causes. After returning to the United States in late 2002, officials said, he began casing the Brooklyn Bridge and discussing via coded messages with Qaeda leaders ways of using blowtorches to sever the suspension cables.

The plotting continued through March, as Mr. Faris sent coded messages to Qaeda operatives in Pakistan. One such message said that "the weather is too hot." Officials said that meant that Mr. Faris feared that the plot was unlikely to succeed — apparently because of security and the bridge's structure — and should be postponed. He was arrested soon after, although officials would not discuss the circumstances of his capture.
Analysis: I was not surprised to see this news story hit the press. Our security agencies (CIA, FBI, DoD, et al) have done a lot to take down Al Qaeda and its ability to operate as a global terror network. However, I was surprised to see the method used by federal prosecutors to obtain this plea bargain:
The allegations against Mr. Faris bear similarities to the case against José Padilla, a Chicago man who last year was accused of plotting with Al Qaeda to plant a "dirty bomb" and who has been imprisoned in a military brig as an enemy combatant.

Prosecutors discussed the idea of declaring Mr. Faris an enemy combatant as well, and that may have influenced his decision to admit guilt to avoid the prospect of indefinite detention, according to a lawyer who demanded anonymity.

Mr. Faris has indicated that he might be willing to cooperate with authorities, a law enforcement official said.
Now, I'm no softie when it comes to dealing with terrorists, criminals, or enemy combatants -- however you may categorize these men. But this looks to me like an abuse of the government's power to designate someone as an "enemy combatant." Presumably, such a label should only apply in the obvious cases. An enemy combatant should be like obscenity as defined by the Supreme Court -- I'll know it when I see it. There shouldn't be a case where someone can be both a criminal and a combatant. If that's the case, then we ought to apply the presumptions in favor of the defendant and give them the constitutional process they're due. In this case, we appear to have held this label out there as a very big stick -- in order to induce Mr. Faris to take the measly carrot of criminal justice instead of the justice that Mr. Padilla now faces.

On the whole, I think this move delegitimizes most of the arguments made by the government to keep men like Yasser Hamdi and Jose Padilla in government custody as enemy combatants -- without communication to counsel or the outside world. These men are probably dangerous; I think they probably did what the government thinks they did. The government argues that enemy combatants like Hamdi and Padilla are unequivocal enemies of the United States. Their conduct has made them so, and we should give them no quarter (legally speaking). Most importantly, the government argues that it cannot get intelligence out of people that are given constitutional rights, because there are practical difficulties associated with interrogating someone who has assistance of counsel. (I can certainly see this point)

Yet, if that's true, why would we have accepted the plea bargains from Mr. Faris and from the "Lackawanna Six"? As Al Qaeda operatives inside the United States, these men may have some of the most actionable, critical intelligence available to our security community. Yet, we have accepted their plea bargains, given them counsel, and sent them to federal prison -- quite unlike Mr. Hamdi and Mr. Padilla.