Thursday, July 3, 2003

You make the call...

May 1, 2003 -- Remarks by the President from the USS Abraham Lincoln At Sea Off the Coast of San Diego, California.
"Thank you all very much. Admiral Kelly, Captain Card, officers and sailors of the USS Abraham Lincoln, my fellow Americans: Major combat operations in Iraq have ended. In the battle of Iraq, the United States and our allies have prevailed. (Applause.) And now our coalition is engaged in securing and reconstructing that country."
Jul. 2, 2003 -- Press Conference by LTG Ricardo Sanchez, Commanding General, V Corps, Baghdad (as reported in the New York Times).
"We're still at war," Army Lt. Gen. Ricardo S. Sanchez, the commander of coalition forces in Iraq, said in a news conference today. While saying the attacks did not appear to be centrally or even regionally coordinated, he asserted that there had been an "increase in sophistication of the explosive devices used" against American forces.
Who's right? It's really hard to tell. The President is correct that major combat operations have ended, insofar as American tanks are no longer charging across the Iraqi desert. But it appears that we are now fighting a new kind (or a very old kind) of war -- a counter-insurgency campaign against hardened guerillas and terrorists who attack with unconventional weapons and tactics. I think LTG Sanchez is right to say the war has not ended -- it has merely begun a new phase. This phase will look a lot more like Somalia than Gulf War I, but hopefully with a better result. More to follow...
Hasta la vista, Saddam

USA Today reports that America has deployed Arnold Schwarzenegger to Iraq as part of a USO tour to visit American soldiers there and elsewhere in the Middle East. It's not clear whether Arnold will merely entertain the troops, or also lend his expertise as demonstrated in the movies Commando, Predator and Terminator.

Is America's Army broken?

The answer, according to Brookings Institute expert Michael O'Hanlon, is "yes". Writing on the op-ed page of today's Washington Post, O'Hanlon says the current operational commitments for the Army have all but sapped its ability to do anything else that might crop up -- like say, a deployment to Liberia. Without an authorization of additional soldiers by Congress, or a significant change in America's commitments abroad, the Army will not be able to deploy anywhere for some time.
This total of nearly 250,000 deployed troops must be generated from an Army of just over 1 million. The active-duty force numbers 480,000, of which fewer than 320,000 are easily deployable at any given moment. The Army Reserve and Army National Guard together include 550,000 troops, many of whom already have been called up at least once since 9/11.

Deployment demands are likely to remain great, even if Rumsfeld and Bush hope otherwise. The Pentagon is lining up 20,000 to 30,000 allied troops to help in Iraq come September, from countries such as Poland and Italy and Ukraine. Unfortunately, as recent events underscore, the overall mission will still likely require nearly 200,000 coalition forces. That means 125,000 to 150,000 U.S. troops could still be needed for a year or more -- with 50,000 to 75,000 Americans remaining in and around Iraq come 2005 and 2006 if past experience elsewhere is a guide.

As a result, a typical soldier spending 2003 in Iraq may come home this winter only to be deployed again in late 2004 or 2005. The typical reservist might be deployed for another 12 months over the next few years. These burdens are roughly twice what is sustainable.
* * *
It would be the supreme irony, and a national tragedy, if after winning two wars in two years, the U.S. Army were broken and defeated while trying to keep the peace. Unfortunately, the risk that this will happen is all too real.
Analysis: O'Hanlon offers some suggestions to fix the mess, like "Make a higher percentage of Army troops deployable" or "Approach a broader range of allies, especially larger countries such as France and Germany and even Japan and South Korea, for substantial troop contributions." I've been saying this for some time too. But these prescriptions are easier said than done. The short-term fix is probably to lean on our allies to provide some additional soldiers for our commitments in places like the Balkans and Iraq. But that will require our compromise on some of our strategic goals, since our allies may not see entirely eye-to-eye with us on every single issue. Given a choice between that, and a broken Army, I would choose the former. Our world is too uncertain for America to face with a force that needs 2-3 years to rebuild itself. We must start posturing now for the threats we can see, and those we can't see, and that means rebuilding our military capacity to deploy as rapidly as possible.

White House plans new aid push for Afghanistan

Elaine Grossman reports in Inside the Pentagon that the Bush Administration has decided to boost the aid it's giving to the infant nation of Afghanistan. The boost will include more money, as well as additional American boots on the ground. Presumably, this comes in response to a deteriorating situation in Afghanistan, which many critics have attributed to a lackluster U.S. effort there to secure and rebuild the country.
Concerned that hard-won security and political successes in Afghanistan may be at risk without fresh support, the Bush administration's national security team is crafting what officials describe as a major new aid initiative to bolster that nation's central government in Kabul, Inside the Pentagon has learned.

The move may amount to tacit recognition of global concern that, without additional U.S. support and leadership, Afghanistan could be on the brink of sliding back into its former condition as a lawless haven for terrorists and drug-smugglers, regional experts say.

The Bush plan -- likely to be unveiled publicly in the next three to five weeks -- will include beefed-up security assistance for President Hamid Karzai's fledgling national army, as well as increased investment in Afghan reconstruction, according to U.S. government officials. But these sources were reluctant to characterize how much the aid package would be worth, saying Defense and State Department officials are negotiating how much funding should be allocated to different projects.
* * *
As many promises of "fresh resources" remain undelivered, Afghans are instead seeing fresh challenges, experts say.

"The security situation in Afghanistan is starting to seriously unravel," said one aid worker earlier this year. "Continued banditry and firefights plague many of the provinces." Many officials express concern that elements of the former Taliban ruling regime and the al Qaeda terrorist network are newly organized and resurgent in the nation.

One part of the Bush initiative that has been in the works for some time -- and now folded into this new package -- is a plan to boost the quantity of "provincial reconstruction teams," or PRTs, the Pentagon fields in Afghanistan, U.S. officials say. Eight of these teams -- composed of civil and military officials charged with undertaking small reconstruction projects around the nation -- were initially planned for deployment.

Now the number is expected to total 12 to 20 PRTs. "That decision is made," said one defense official, saying the principal Cabinet members for national security have approved the concept. The role of these teams may also slightly expand, this official said. U.S. Central Command is expected to forward a recommendation to the Pentagon about precisely how many teams are needed, and how the teams might be made "thicker," in the words of another U.S. government official.

Wednesday, July 2, 2003

Happy 30th Birthday, All-Volunteer Military

America's military celebrates an important birthday this week -- the 30th anniversary of its transformation from a conscription-based force to an all-volunteer force. For a generation now, America's finest sons and daughters have volunteered for military service instead of being pressed into service by force of law. The change has been spectacular. America's military could not train, deploy and fight as it does if not for the high caliber of people in the ranks. Gadgets don't win wars -- people do.
Thirty years ago today - a full generation back - the United States put the military draft behind it.

Gone at a stroke were the letters to young men that began "Greetings from the President of the United States." Gone were the uncertainty, the lotteries, the physicals, the scramble for deferments, the social discord. Ever since July 1, 1973, the Army has been an all-volunteer outfit. Barring a major war, the Army is expected to stay that way. The shift has given the nation a more professional Army. But the societal tradeoffs remain open to argument.

From a strictly military point of view, the all-volunteer Army is a vast improvement.

"The soldiers today are better-trained, better-motivated and have fewer disciplinary problems," says retired Lt. Col. Frederick Chiaventone of Weston, Mo. "And they're brighter."
* * *
Beyond the bigger slice of women, today's Army looks a lot different from the Army of 1973. Among other things, today's Army:

Needs fewer recruits (73,000 a year now, 198,000 then). As Pittsburgh's Karsten puts it, "It can be more selective."

Is smarter, with most recruits holding a high school diploma.

Shows more stability because it has more career soldiers - the sort who want to stand out and get ahead. Old soldier Rogge recalls that in contrast, "Lots of draftees didn't care whether they did a good job or just got by."

Packs along more spouses. Almost half of today's Army is married - some of them raw recruits. Ex-Lt. Col. Baker signed on in 1965, "and back then, it was hard to find anybody below the rank of sergeant who was married."

Musters more African-Americans as enlisted soldiers (29 percent now, 14 then) but has fewer blacks in combat jobs.

Displays a much narrower socio-economic range.

"It's largely a working-class Army, a blue-collar Army," says Kohn.

Chiaventone recalls that the ranks in his 1973 Army "had a greater variety across the entire spectrum. You had some college graduates - and you also had kids who were there to stay out of jail."

Fort Leonard Wood sits in the congressional district of Rep. Ike Skelton, D-Mo. "Walk down the line at the rifle range there," says Skelton, the senior Democrat on the House Armed Services Committee. "Ask the recruits where they're from.

"The majority are from small towns, rural areas, the inner city. Very few are from the suburbs. And that concerns me." The significance: Few from affluent families serve.

Kohn puts it this way: "The all-volunteer Army raises the uncomfortable problem of having an Army that begins to look, from an economic point of view, like a Foreign Legion."
Analysis: Earlier this year, Rep. Charlie Rangel suggested a return to the draft for a variety of reasons. Some were flatly political -- he wanted to embarass the members of Congress who called for war without a personal stake in the venture. But he also wanted to return to the days where Americans shared the burdens of military service, and felt the sacrifices. I think that's a noble goal. But it's not the ultimate goal of the military. We have a military to fight and win our wars, and also to prevent war by deployments such as those in Bosnia and Kosovo. Our military is not a social experiment, nor is it a way to promote national bonhomie or civic pride. I agree that military service does promote those things, and most veterans have a certain sense of patriotism that non-veterans can't themselves enjoy. But that's not a good enough reason to resume the draft, and destroy the hard-won gains of our professional military.

There are problems that stem from the existence of an all-volunteer force; these must be mitigated. A professional force may separate itself from civil society, in order to promote the martial virtues necessary for military success. We mitigate this by encouraging short-term enlistments (like mine), where citizen-soldiers rotate through the military for a few years at a stretch.

A professional force also has the potential to become a mercenary force. This has not occurred yet, but it may occur someday if America becomes sufficiently distanced from its military so as to cavalierly send it into harm's way. Our military could also become a mercenary force if it divorced itself from the Constitutional ideals of our nation, or the norms and values of American society. The constant rotation of junior personnel through the ranks makes this unlikely, as does the oath of office sworn to by every soldier and officer. But it is a danger we should be cognizant of.

Tuesday, July 1, 2003

Why Lawrence may have an effect on the military

A partial response to Jacob Levy of the Volokh Conspiracy

Jacob Levy writes a lot of things in his post on the military. It's clear at the outset that there is room for disagreement between reasonable and intelligent people on this issue. Notwithstanding that, I think he's wrong about a few things.

1. The Uniform Code of Military Justice isn't precisely the issue here; 10 U.S.C. 654 is. Nonetheless, I have some issues with the way he characterizes the UCMJ. First, he writes that "The internal governance of the military isn't quite a black box as far as constitutional law is concerned; but it's very close." That's not exactly right. For starters, the UCMJ is subject to the constraints of the U.S. Constitution. Criminal adjudications under the UCMJ are reviewable by the U.S. Court of Appeals for the Armed Forces, a court which has the same stature (although not the same prestige) as any Art. III appeals court. Military convictions are subject to the same Constitutional rules that civilian convictions are, and indeed, many are overturned in the military context.

1a. He also writes that "The Uniform Code of Military Justice authorizes court-martial and other internal legal proceedings that are very clearly not as advantageous to defendants as the (currently-interpreted-) Constitutional minumum for civilian trials." It's also unfair to say the military system is more punitive or less fair than the civilian system. In many ways, the military system is more fair than the civilian system because it must compensate for the overarching coercive nature of the military environment. For example, the military privilege against self-incrimination is substantially stronger than that in the civilian world, and indeed was cited in the Court's Miranda decision as a model for the protections articulated by the Court in that decision. (For more on this, see my piece in Writ at Findlaw.Com on the military justice system.)

2. The UCMJ exists in Title 10 as a creation of Congress; it's codified in Chapter 47 of Title 10 in the United States Code. However, Congress has delegated the administration of the UCMJ to the President, and executive branch attorneys actually revise the UCMJ every two years and promulgate the rules of evidence and procedure that go along with the actual punitive articles. There is a great deal of deference to the UCMJ because it is very much an executive-branch creation; a product of the respective service JAGs.

3. 10 U.S.C. 654, on the other hand, is somewhat different as a matter of law and politics. It is a creature of Congress, not the Pentagon, and can only be changed by Congress or the courts. As a federal statute, it is due the deference that the Court would give to the political branches on any legislative matter. It may also be due some Constitutional deference in accordance with the delegation of powers in Art. I, Sec. 8: "To make Rules for the Government and Regulation of the land and naval Forces." I don't think it's a slam dunk to say this is a matter of national security and military deference, therefore the courts will defer. For starters, it's not clear whether this ban is in America's national security interest. (See, e.g., the discharge of Arab-speaking linguists from the Defense Language Institute earlier this year) Second, it's not clear that a statute like this will receive the same deference, given its legal context and legislative history, as a regulation promulgated directly by the Pentagon. Third, I'm not sure that this policy will get the 100% backing of the Pentagon today.

4. I cited to Goldman v. Weinberger for exactly the opposite proposition that Jacob points out, with help from a couple of other cases like Rostker v. Goldberg. The point is that the military is allowed to make certain regulations that do not heavily burden the exercise of fundamental rights. The military can burden such rights on the margins, such as requiring Jewish soldiers to wear earth-tone yarmulkes or shave their beards in order to achieve a proper seal with their M40 protective mask. But it cannot flatly tell these servicemembers not to engage in their conduct. In other words, a little burden is okay; a big burden is not. The military has gotten away with burdening fundamental rights in a small way, and it has been deferred to by the courts. But it may not get such deference when it heavily burdens fundamental rights that have been recognized by the court.

This is somewhat of a slippery slope problem, on which I am grateful to Eugene Volokh's thoughtful piece in the Harvard Law Review. (Full disclosure: I'm still trying to understand the full argument of Eugene's article) However, the point is that the military's conduct may be okay at one point on the slope, while not being okay at a subsequent, lower point on the slope. As I understand fundamental rights analysis, the extent of the burden plays some role in determining the outcome. To the extent that the policy on gays burdens the rights of gays much more heavily than any other military policy does with respect to a fundamental right, this policy may be struck down.

5. Jacob writes that the military policy does not directly prohibit sodomy, and since that's what the Supreme Court recognized, the Supreme Court's decision does not directly delegitimize the military's policy. I can see this point, but I think it's wrong as a matter of Constitutional law. For starters, Justice Kennedy's opinion did not just strike down the Texas sodomy statute; it recognized a fundamental right of intimate conduct for homosexual persons. The fundamental rights analysis does not require an exact fit between the facts of Lawrence and the facts of a military case in order to work. Once the Court recognizes a fundamental right, the analysis works quite differently. The burden shifts to the government to show a compelling interest for its policy which burdens the right, and that the policy is narrowly tailored to that compelling interest. The right recognized by the Court was not just sodomy -- it was "intimate conduct". 10 U.S.C. 654 may not directly speak to sodomy per se, but it certainly speaks to "intimate conduct" of homosexual persons.

Thus, I believe this policy cannot stand as a matter of Constitutional law. But as I said before, this is an area where reasonable people can disagree, and it's certainly no slam dunk.

Update: Jacob has a response at the Volokh Conspiracy, which he slyly calls a "couple of quick rejoinders". Hah. Remind me never to pick an intellectual fight with an academic again. Jacob has a long and well-researched note that I frankly don't have time to respond to. Even if I could, it looks like he's probably right on some of the important legal issues that will decide this fight in the courts. I may write on this later, if I get some time after work tonight or tomorrow. But until then, it's back to the salt mines (law firm) for me. . .

Will Lawrence have any effect on the military?

Jacob Levy thinks I'm wrong (along with Mark Kleiman) about Lawrence and gays in the military. He shares his reasons why at the Volokh Conspiracy. I agree with some of his arguments, but disagree with his conclusions.

More to follow tonight ...