Sunday, July 20, 2003

Every generation has its heroes

Sunday's Washington Post has an extremely moving story about the men who suffered some of the most grievous wounds during the war with Iraq, and who now are recovering from their wounds at the Walter Reed Army Medical Center in Washington. (The Post also has the photos from the article available online.)
On TV, the war was a rout, with infrared tanks rolling toward Baghdad on a desert soundstage. But the permanent realities unfold more quietly on Georgia Avenue NW, behind the black iron gates of the nation's largest military hospital.

Here, the battle shifts from hot sand to polished hallways, and the broad ambitions of global security are replaced by the singular mission of saving a leg. Ward 57, the hospital's orthopedics wing, is the busiest. High-tech body armor spared lives but not necessarily limbs.

The night President Bush declared the end of major combat, the soldiers on Ward 57 slept, unaware of victory.

Garth Stewart was curled in a miserable ball of blue pajamas.

First Lt. John Fernandez, the West Point graduate, was beginning married life from a wheelchair.

Pfc. Danny Roberts was wishing for Faulkner instead of a glossy guide about adapting to limb loss.

Their war was not yet over.

Walter Reed has been treating wounded soldiers since the beginning of the century, expanding and contracting with the rhythms of war. During World War I, the number of patient beds grew from 80 to 2,500 in a matter of months. Three generations later, the soldiers from Operation Iraqi Freedom arrive, some so fresh from the battlefield they still have dirt and blood beneath their fingernails.

Each morning, across the sprawling grounds of the 147-acre compound, reveille is sounded at 6. But up on the hospital's fifth floor on Ward 57, the fluorescent dawn is indistinguishable from the fluorescent night. Two long halls flank the nurse's desk, the command center of the ward. Doctors begin their morning rounds at dawn.
Some thoughts... The human cost of war is always one of the most troubling things to accept, because it really calls into question our reasons for the war itself. When you look at a wounded combat veteran, the question stares back at you: "Was this man's injury worth it?" I will reserve judgment on that question, given all that has come to light in the last few weeks regarding our casus belli in Iraq. However, I believe that we owe these answers to the men and women we sent to Iraq, and to the families of those who will not return. Our nation should never fight for an unworthy case; the cost in blood and treasure is too high.

Saturday, July 19, 2003

Two memorials in Santa Monica

I took my dog Peet for a walk today to the Third Street Promenade, and walked through two memorials to Wednesday's horrific incident at the Santa Monica farmer's market. One was what you might expect from the city of Santa Monica -- a multicultural, non-sectarian gathering to mourn the dead and give thanks for our existence. I've been a lot of memorial services, but this one didn't move me in any particular way.

The second memorial was the Saturday farmer's market itself, which promoters and farmers decided to hold today despite Wednesday's tragedy. Every vendor commemorated the incident in some way, whether with black cloth around his stand or black ribbons in front of his table. But the overall message was: we will persevere through this tragedy. That was a powerful message, and I think it was the best way to memorialize those who died on Wednesday.

Friday, July 18, 2003

Tony Blair: a great American

The British have been blessed in our time to have great orators like Winston Churchill and Tony Blair for national leaders. In times of crisis, these men lift their citizens' morale and spirits with moving words. Speaking before a joint session of Congress yesterday, Prime Minister Tony Blair turned his words towards us, his somewhat reluctant allies across the Atlantic.
Members of Congress, if this seems a long way from the threat of terror and weapons of mass destruction, it is only to say again that the world's security cannot be protected without the world's heart being won. So America must listen as well as lead. But, members of Congress, don't ever apologize for your values. (Applause.) Tell the world why you're proud of America. Tell them when "The Star-Spangled Banner" starts, Americans get to their feet -- Hispanics, Irish, Italians, Central Europeans, East Europeans, Jews, Muslims, white, Asian, black, those who go back to the early settlers, and those whose English is the same as some New York cab drivers I've dealt with -- (laughter) -- but whose sons and daughters could run for this Congress. Tell them why Americans, one and all, stand upright and respectful. Not because some state official told them to, but because whatever race, color, class or creed they are, being American means being free. That's why they're proud. (Cheers, sustained applause.)

As Britain knows, all predominant power seems for a time invincible, but in fact, it is transient. The question is, what do you leave behind? And what you can bequeath to this anxious world is the light of liberty. That is what this struggle against terrorist groups or states is about. We're not fighting for domination. We're not fighting for an American world, though we want a world in which America is at ease. We're not fighting for Christianity, but against religious fanaticism of all kinds. And this is not a war of civilizations, because each civilization has a unique capacity to enrich the stock of human heritage. We are fighting for the inalienable right of humankind -- black or white; Christian or not; left, right or merely indifferent -- to be free -- free to raise a family in love and hope; free to earn a living and be rewarded by your own efforts; free not to bend your knee to any man in fear; free to be you, so long as being you does not impair the freedom of others.

That's what we're fighting for, and it's a battle worth fighting. And I know it's hard on America. And in some small corner of this vast country, out in Nevada or Idaho or these places I've never been to but always wanted to go -- (laughter) -- I know out there, there's a guy getting on with his life, perfectly happily, minding his own business, saying to you, the political leaders of this country, "Why me, and why us, and why America?" And the only answer is because destiny put you in this place in history in this moment in time, and the task is yours to do. (Sustained applause.)

And our job -- my nation, that watched you grow, that you fought alongside and now fights alongside you, that takes enormous pride in our alliance and great affection in our common bond -- our job is to be there with you. You're not going to be alone. We will be with you in this fight for liberty. (Sustained applause.)

We will be with you in this fight for liberty. And if our spirit is right and our courage firm, the world will be with us.
Words like these remind us of our ideals, and of what it means to be an American. I can't help but feel pride when a national leader like Tony Blair speaks this way about America and its role in today's world. Now all we have to do is live up to these expectations -- a task which is easier said than done.

Planning for success?

The Washington bureau of the Los Angeles Times has a very interesting (and very lengthy) report today on what went wrong with America's planning for post-war Iraq. This is more than your typical "first draft of history" journalism -- the Times reporters painstakingly lay out the pre-war planning process, and the various ways that nation-building planning was neglected by the Administration.
Since the fall of Baghdad on April 9, U.S. and British troops have struggled to bring order from chaos. Water, electricity and security are in short supply, fueling resentment among many Iraqis. A guerrilla-like resistance has taken shape against the occupation; U.S. casualties mount almost daily in an operation that is costing nearly $4 billion a month and stalling the withdrawal of American forces.

The Bush administration planned well and won the war with minimal allied casualties. Now, according to interviews with dozens of administration officials, military leaders and independent analysts, missteps in the planning for the subsequent peace could threaten the lives of soldiers and drain U.S. resources indefinitely and cloud the victory itself.

Rivalry and Misreadings

The tale of what went wrong is one of agency infighting, ignored warnings and faulty assumptions.

An ambitious, yearlong State Department planning effort predicted many of the postwar troubles and advised how to resolve them. But the man who oversaw that effort was kept out of Iraq by the Pentagon, and most of his plans were shelved. Meanwhile, Douglas J. Feith, the No. 3 official at the Pentagon, also began postwar planning, in September. But he didn't seek out an overseer to run the country until January.

The man he picked, Garner, had run the U.S. operation to protect ethnic Kurds in northern Iraq after the 1991 Persian Gulf War. Based on that experience, Garner acknowledged, he badly underestimated the looting and lawlessness that would follow once Saddam Hussein's army was defeated. By the time he got to Baghdad, Garner said, 17 of 21 Iraqi ministries had "evaporated."

"Being a Monday morning quarterback," Garner says now, the underestimation was a mistake. "But if I had known that then, what would I have done about it?"

The postwar planning by the State and Defense departments, along with that of other agencies, was done in what bureaucrats call "vertical stovepipes." Each agency worked independently for months, with little coordination.

Even within the Pentagon there were barriers: The Joint Chiefs of Staff on the second floor worked closely with the State Department planners, while Feith's Special Plans Office on the third floor went its own way, working with a team from the Central Command under Army Gen. Tommy Franks.

Defense Secretary Donald H. Rumsfeld's civilian aides decided that they didn't need or want much help, officials in both departments say.

Central Command officials confirmed that their postwar planning group — dubbed Task Force Four, for the fourth phase of the war plan — took a back seat to the combat planners. What postwar planning did occur at the Central Command and the Pentagon was on disasters that never occurred: oil fires, masses of refugees, chemical and biological warfare, lethal epidemics, starvation.

The Pentagon planners also made two key assumptions that proved faulty. One was that American and British authorities would inherit a fully functioning modern state, with government ministries, police forces and public utilities in working order — a "plug and play" occupation. The second was that the resistance would end quickly.

Thursday, July 17, 2003

Great initiative... not so great judgment

Every month, the Defense Department General Counsel's Standards of Conduct Office publishes a monthly advisory on ethics within the Pentagon and the military services. SOCO has responsibility for promulgating ethics regulations, training guidelines, etc., for the Pentagon. Their staff takes it really seriously too, however, they often find ways to teach their lessons in humorous ways. Here's an excerpt from their July 2003 advisory:

In yet another remarkable case of bad judgment, a Marine Corps company commander who was deployed in Iraq asked a tobacco company to send his men its products for free. After receiving the free goods, he sent a "thank you" note that was used as part of the tobacco company's advertising. The letter implied that the DoD endorsed the product, and, eventually, garnered the attention of two Congressmen. Please remember the standards of conduct apply in Iraq, too.
It's hard to suppress a smile at this Marine captain's initiative. If I was his commander, I'd probably recommend him for a Navy Achievement Medal for this sort of thing, while chiding him privately about the thank-you note. These are the kinds of things we expect of our junior leaders, who we entrust with the lives of our finest sons and daughters. I hope his chain of command took care of him the way he took care of his Marines.

Federal judge says legal mission to Iraq was a sham

USA Today reports today that 6th Circuit Judge Gilbert S. Merritt has blasted the American government in Iraq for impeding a mission arranged by the Justice Department to restore Iraq's legal institutions. The DoJ-sponsored mission included federal judges, prosecutors and defense attorneys who had the charter of advising Iraq on its Constitution and the establishment of a new legal system.
Senior U.S. District Judge (sic) Gilbert Merritt said the 25-member delegation's hopes of assessing Baghdad's judicial and law enforcement institutions were hindered by the chaos in the city of 5 million people. Guerrilla warfare continues, water and electricity service are limited, police forces are barely functioning, and many courthouses are bombed-out shells, he and other members of the delegation said.

But Merritt was particularly annoyed by the U.S. occupation authority's attempt to control information by limiting what his group and others involved in rebuilding said to the news media.

Merritt is a former chief judge of the 6th U.S. Circuit Court of Appeals, which covers Michigan, Ohio, Kentucky and Tennessee. He said members of his delegation were given a directive authorized by the chief U.S. administrator in Baghdad, Paul Bremer. It said all contact with the news media had to be cleared by top officials of the Coalition Provisional Authority (CPA).

Merritt said the order seemed odd for a group of judges, lawyers and law enforcement experts who had been sent to Iraq by the Justice Department to help put Iraqis on a course for more individual freedom. "When I read it, I thought it must be a joke," said Merritt, 67. "It's clearly unconstitutional. It's a hell of an irony, given that we were there teaching them the value of liberty and free speech."

Pentagon to call up two National Guard brigades for Iraq

Greg Jaffe reports in this morning's Wall Street Journal (subscription required) that the Defense Department has decided it must call up two brigades of National Guard soldiers for the Iraq mission, since it has been unable to enlist America's allies in the effort there. Two brigades equates to roughly 10,000 soldiers, which does not seem like a lot for the 480,000 active-duty Army to manage. However, as the article points out, nearly all of the Army is committed to operations in Iraq, Bosnia, Kosovo, Korea and Afghanistan right now, leaving the Guard as America's only option.
Defense Secretary Donald Rumsfeld is expected to sign off on a plan later this week that would establish a rotation to relieve Marine and U.S. Army soldiers deployed in Iraq, a Pentagon official said. After training, it would be March or April by the time National Guard soldiers would be deployed, likely for stints of 13 to 16 months including the training. Even so, demands on the active-duty Army would remain intense. Asked if he had ever seen the Army stretched so thin, one senior defense official recently said: "Not in my 31 years" of military service.
* * *
The U.S. has 148,000 troops -- Army and Marine Corps -- on the ground in Iraq, with 33,000 support troops in Kuwait. There are an additional 11,000 U.S. soldiers serving in Afghanistan. No National Guard combat brigades are in Iraq, though Air National Guard personnel are flying missions.

The two brigades probably would be called up this winter, the Pentagonofficial said. They would be given about 30 days to get their affairs in order and then go through two to three months of training before being deployed. The earliest they would arrive in Iraq would be March or April 2004.

Currently, 21 of the Army's 33 active-duty combat brigades are deployed in Iraq, Afghanistan, South Korea and the Balkans. Three more brigades are in the process of modernizing and can't be sent abroad. That leaves nine brigades -- or 45,000 troops -- to relieve all of the Army forces deployed around the world.
This is going to be a challenge. America's National Guard has already been stretched thin by consecutive homeland security deployments since Sept. 11, known as Operation Noble Eagle. In the California Army National Guard, nearly every combat arms unit has already deployed once. The units which have deployed have returned in deplorable condition, with most soldiers opting to leave the Guard. There are a number of National Guard units which have been left alone for homeland security, and these are the likely units to deploy to Iraq. However, even that is a finite supply. If America is to stay in Iraq for the long hall, this solution won't work.
Painful lessons in Santa Monica

Yesterday's tragic incident in Santa Monica which left nine people dead is a tragic reminder of how quickly accidents can escalate into mass-casualty situations when crowds are involved. The incident (not an accident -- nothing is ever accidental; it always has some cause) happened a short walk away from where I live. I go to 3rd Street a lot, and I've been to that farmer's market a dozen or so times. Suffice to say, it was hard to work yesterday afternoon as the story unfolded.

It appears that this driver had no evil intent. Details are still emerging, but it looks like he tried to pump his brake pedal, but instead found his accelerator pedal. That doesn't change the carnage he caused. He still killed 9 people, and left dozens more hurt. Despite the apparent lack of evil intent, this incident holds many lessons learned for us as we think about how we might respond to another kind of mass-casualty event -- a terrorist attack. This is just my thinking, as a former anti-terrorism plans officer, but I think it's what a lot of folks in the Santa Monica Police Dept. are probably thinking about right now.

1. Large groups of people are targets. The reasons are many fold. First, large groups of people maximize the chances for large casualty counts, and that's usually a goal for terrorists. Second, the proportion of people who have been to a place where lots of people are is high, thus, lots of people will say afterwards "I've been there before -- that could have been me." This increases the fear factor of an attack, adding to its psychological impact. Finally, large gatherings of people tend to be media magnets -- there's often a camera crew there already to catch the news. As Brian Jenkins said 30 years ago, "terrorism is theater."

2. Simple measures can work. A threat assessment for the farmer's market in Santa Monica would have noted the threat of an inbound car or truck-borne explosive -- either one of which would be deadly. The proximity of this market to traffic makes that a possible threat, though not a probable one. Moreover, mitigating this threat would not have been hard. Parking two cars to physically block the street at either end of Arizona Ave. would have been sufficient; so too would have been placing "jersey bounce" barriers (concrete barriers that can stop a speeding car) at either end. (This would've been more costly, and entailed a crane to move them every time.

Ironically, the 3rd Street Promenade has retractable, sunk-in metal barriers at all ends, but those devices were never installed for the farmer's market area -- which has become somewhat of a permanent fixture. Perhaps the City Council should consider those before they reopen these markets.

3. Mass casualty plans and mutual aid plans work. The city of Santa Monica does not have the ambulance or medical capacity to deal with this kind of event. Luckily, the larger West L.A. area does. Within minutes, reports indicate, ambulances from other jurisdictions sped to Santa Monica to help, as did Life-Flight helicopters. Emergency rooms elsewhere in the area also pitched in, adding to the capacity of UCLA-Santa Monica Hospital and allowing the most urgent patients to be seen at the closest hospital. These measures save lives.

California (and the L.A. area in particular) are actually quite good at this kind of anti-terrorism preparation. Our region has been cursed with natural and man-made disasters like earthquakes, wildfires, floods and riots. In response, our "consequence management" agencies (fire, medical, public health, etc) have developed great plans and working relationships for these kinds of incidents. Those plans and coordination paid off yesterday in Santa Monica.

There are more lessons to be learned, but those are my initial thoughts on this morning after. More to follow as the story develops.

Tuesday, July 15, 2003

Pentagon to loan Unmanned Aerial Vehicles to homeland security effort

The trade journal Aerospace Daily reports today that the Defense Department plans to loan some of its high-tech unmanned aerial vehicles ("UAVs") to the Department of Homeland Security for border security. The loan will include military personnel and equipment. It's not clear whether the DoD personnel will merely train and familiarize DHS personnel with UAVs, or whether this loan will include some operational use of the UAVs for actual border security missions.
The deployment, set to take place within the next few months somewhere along America's southern border, comes at the request of Gordon England, deputy secretary for homeland security at DHS and former secretary of the Navy.

"This is a technology - UAVs - that we need in the Department of Homeland Security," England said July 14 at Naval Air Systems Command's (NAVAIR) second public UAV demonstration here at the Webster Field annex of Naval Air Station Patuxent River.

"We've asked the DOD folks if they could just do some training missions with us, so we can gain some familiarity with UAVs, particularly our border and transportation security people," England said. "We just want to let our people see them in operation, understand their resolution, how they might operate, [and] how they may augment us in the future."

The platform and exact location for the training exercise have yet to be chosen, according to England. DOD personnel will operate the UAVs.
Analysis: This raises some of the same legal questions that I wrote about in Slate last year when the Pentagon loaned surveillance aircraft to look for the D.C. sniper. Federal law bars the use of military personnel for law enforcement, although a number of exceptions exist.
So, when, exactly, can soldiers help the cops?

Almost always, so long as they don't directly engage in police work. The Army can offer intelligence, transportation, and logistical assistance to cops, but it can't conduct searches or make arrests.
* * *
In the 1980s, Congress mandated even more ways the military could provide support to local law enforcement. The main exceptions grew out of the "War on Drugs," allowing the military to do things like fly surveillance planes on the U.S. border with Mexico, train police officers in various military specialties, or provide radar data to the U.S. Border Patrol and Customs Service. A federal law also allows the military to share intelligence with local law enforcement officers, provided the intel is collected during normal military operations. Another major exception, created in 1996 after the Oklahoma City bombing, authorizes the military to provide support to local cops in the event of a chemical or biological attack.

The Army's current plan to fly reconnaissance planes in Maryland is covered by these exceptions: Army personnel will fly the planes and operate the equipment, but civilian police will ride along to analyze any evidence gathered while in flight.
As a matter of law, this UAV plan may be different from the case of the D.C. sniper. Arguably, the Department of Homeland Security is a national security agency more than a law enforcement agency. Its primary purpose in guarding the border is to prevent entry and secure the nation, though it certainly has the secondary purpose of prosecuting those who might break the law entering the U.S. The Posse Comitatus Act bars the use of military personnel and equipment for law enforcement -- it does not bar their use for national security functions. In addition, a number of exceptions exist, such as 10 U.S.C. 372, which states:
(a) In General. - The Secretary of Defense may, in accordance with other applicable law, make available any equipment (including associated supplies or spare parts), base facility, or research facility of the Department of Defense to any Federal, State, or local civilian law enforcement official for law enforcement purposes.
Ultimately, these exceptions are limited by 10 U.S.C. 375, which states that such assistance shall not include "direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law."

Bottom Line: It looks to me like this UAV loan program will be covered by the exceptions to Posse Comitatus. The interesting thing will be whether the loan program will be covered by two provisions in the Homeland Security Act of 2002, which created the DHS. Sections 876 and 886 expressly limit the military activities of the new department, and reaffirm Congress' commitment to the Posse Comitatus doctrine. Sec. 876 states:
Nothing in this Act shall confer upon the Secretary any authority to engage in warfighting, the military defense of the United States, or other military activities, nor shall anything in this Act limit the existing authority of the Department of Defense or the Armed Forces to engage in warfighting, the military defense of the United States, or other military activities.
There's a pretty good argument that this deployment of UAVs violates the spirit -- if not the letter -- of the Homeland Security Act. If Congress wanted a military homeland security effort, they would have simply told the Pentagon to make it happen without creating a Dept. of Homeland Security. Instead, I think that Congress wanted a civilian effort on the domestic security front.

Eventually, I think that DHS probably plans to buy its own UAVs to run its own border security operations. But in the interim, I think they need to answer some tough legal questions about their plan to borrow them from the Pentagon.

Judicial deference and national security

I have a piece today in Writ, Findlaw.Com's online journal of legal commentary, which criticizes judicial deference to the Executive Branch on national security grounds as somewhat anachronistic and out-of-step with modern reality. The piece tries to paint a picture of Constitutional tension between individual rights on the one hand, and the President's power to command the military on the other. Ultimately, what's needed is more of a balancing approach, rather than a strict policy of deference by the courts whenever national security is involved.
Does the judicial deference doctrine still make sense today? For a number of reasons, it may not be as well-justified as it once was.

Recall that one early justification for the doctrine was the Executive Branch's superior national security knowledge and expertise. In the modern era, however, judges are more knowledgeable about foreign policy than they may once have been. The information asymmetry which used to exist between the Executive and Judicial branches has been wiped away, thanks to CNN and the rise of the modern media establishment.

Moreover, to the extent that there are gaps in judges' knowledge, the executive branch can provide them with sensitive national security information through various means spelled out in the Classified Information Procedures Act. Judges can review this information "in camera" - outside the presence or access of the parties - if necessary to preserve secrecy and security.

Over time, the military itself has also changed in ways which are relevant to the issue of judicial deference. Our all-volunteer force is a more diverse cross-section of our society than any employer or university. To the extent that society has become more tolerant of gay persons and more inclined to honor their rights, so too has the pool of young men and women joining today's miltiary.

These young people are the product of a society that recognizes certain fundamental rights and liberties for all Americans. When they enlist, they choose a life that involves sacrifice and hardship. But they never fully leave behind the values and beliefs they had when they joined the service.

For this reason, deference to military policies that infringe individual liberties on this, and other issues, can create tremendous dissonance between the values of the military and civil society - leading servicepersons to question and doubt the military's institutional values.

The dissonance and doubt add other variables with which commanders have to contend as they train, assimilate, socialize, and lead soldiers. Thus, the very policies intended to bolster morale and unit cohesion, good order, and discipline, may end up detracting from all these values if many servicemembers consider the policies intolerably unjust.
Update: just picked up this piece and published it on the legal page of their news site.

Monday, July 14, 2003

3rd Infantry Division to remain in Iraq

MSNBC and others report that the Army has delayed the return of its 3rd Infantry Division from Iraq again. With attacks on Americans growing more frequent and deadly, Pentagon leaders appear unwilling to reduce their force in Iraq to deal with those attacks. The decision is the second for the "Rock of the Marne" division, whose soldiers had been told they would return to the U.S. in June. Many of 3ID's soldiers have been in the desert for 9-12 months, and numerous stories have reported on the morale problems for both soldiers and families created by the back-and-forth over the division's redeployment.
Maj. Gen. Buford C. Blount III, the division's commander, said last week he hoped the division's 1st and 2nd Brigade Combat Teams of roughly 9,000 soldiers could return home to Fort Stewart within the next six weeks.

But homecomings for those soldiers, as well as the division's 3rd Squadron, 7th Cavalry Regiment, have now been postponed indefinitely, Fort Stewart spokesman Richard Olson said Monday.

"Now, that time frame has basically gone away, and there is no time frame," Olson said.

"It's damned obvious why they're not coming home as promised — there's no stability in place yet," in Iraq, an Army official told NBC News' Jim Miklaszewski.

The extension order will pertain to the 1st and 2nd brigades of the Army's 3rd Infantry division, many of whom have been in the Iraq area now for nearly a year.

The Army's 1st Cavalry Division out of Fort Hood, Texas, was due to rotate into Iraq to replace the 3rd Infantry Division, but now it is unclear what that timetable is.
According to the 3ID website, a number of units have redeployed from Iraq, and more are on the way home. It also appears this redeployment is being done in rough reverse chronological order, based on who deployed to the desert first.

Balancing mission accomplishment against morale is a hard thing. It's the quintessential challenge for every military leader, in peace and war. Every unit finds its own balance; some are more "hard core" than others. The redeployment of 3ID is essentially a large version of this problem. The Pentagon must accomplish the mission in Iraq; we've spent too much blood and treasure to lose now. But at the same time, we must take care of our soldiers and their families -- we owe them that. I think it's time to bring 3ID home and rotate another unit over there. But I would hate to see this division come home at the cost of the mission, because that would undermine all the sacrifices these men and women have made.