Thursday, July 31, 2003

Another casualty in the DARPA wars, part II

John Poindexter isn't the real reason DARPA programs keep dying

After being scooped by the Wall Street Journal (see below), the New York Times catches up with this report by Eric Schmitt on Poindexter's resignation, based on a background briefing from an anonymous senior defense official.
"It's fair to say that the secretary understood what Admiral Poindexter understands, which is that it's difficult for any work that he might be associated with to receive a dispassionate hearing,'' said the official, who spoke to a group of reporters at the Pentagon today on the condition of anonymity.
Huh? That's like the classic Rumsfeld-ism that the absence of evidence is not the evidence of absence. (Tell that to a judge on a summary judgment motion and you're toast.) Frankly though, I'm not sure that Poindexter is the issue here. Even if PAM fell outside the purview of his DARPA IAO shop, the project would still have been dead on arrival in the Senate.

Why's that? Because the real issue here isn't John Poindexter -- it's the deep mistrust of the Bush Administration on issues of civil liberties that runs through American society like a cold stream. Since Sept. 11, the administration has leaned really far forward in its foxhole on issues of liberty and security, and I think the American people are a little spooked. Part of this owes to a successful campaign by the ACLU and others to frame these issues as a choice between liberty and security; part of it owes to deep divisions in American society over the Bush Administration itself. But in general, I think that DARPA's projects fail because the American people simply don't trust the administration to try anything that might further affect the balance between liberty and security.

Let's be honest -- few people actually understand how Total Information Awareness, LifeLog, Genoa, or the Policy Analysis Market will actually work. These are very complex programs that are mostly still in the conceptual stage. Even without knowing those details, people find themselves opposed to these programs. I have seen among my friends in Santa Monica a visceral reaction to these programs -- even after I explained their details. I think this all traces back to trust.

Bottom Line: the Bush Administration no longer has the trust of the American people when it comes to civil liberties. This is the "blowback" from the administration's aggressive stance towards anti-terrorism since Sept. 11. The administration aggressively implemented a long list of anti-terrorism laws and policies, including:

- The Homeland Security Act
- Military commissions
- The presidential power to designate "enemy combatants" and hold them indefinitely without counsel
- Detention of 600 combatants at Guantanamo without Geneva Convention protection
- Broader surveillance powers under FISA
- Use of the "material witness" statute to detain citizens
- Use of immigration laws to detain and deport U.S. residents

Right or wrong, I think the public perception is that these measures collectively encroach on American civil liberties. At some point, the administration had to have known that the American public would say "Enough!" That day has come. Until the administration regains the public trust on these issues, the American people and their legislators are going to torpedo every DARPA program that leaves the Pentagon.

Congratulations: Donald Sensing at One Hand Clapping has something to be very proud of: his son enlisted yesterday in the U.S. Marine Corps. Don has an MPEG video of the event posted on his weblog. As a retired military officer, Don was able to actually administer the oath of enlistment to his son, which must have been a proud moment. (My parents pinned my 2LT bars on me in June 1997, and I will never forget how that felt)

Trigger pullers and video games

Noah Shachtman has this interesting article in Wired about the military's decision to buy video games for soldiers stationed overseas. The move is driven largely by morale considerations, but is also geared towards the generation of young men and women now serving in uniform.
Just out of high school, thousands of miles from friends and parents, and isolated by language and culture from the people around them, young airmen stationed on a U.S. Air Force base in Europe can find life pretty lonely.

But now the military's fresh faces can get a bit of the comforts of home -- by wasting their pals in an online shoot-'em-up game.

Another casualty in the DARPA wars

First Total Information Awareness; then the Policy Analysis Market -- now John Poindexter. The Wall Street Journal (subscription required) reports on A2 today that the retired Admiral and Iran-Contra figure will leave the Pentagon's DARPA team within the next several weeks. His resignation comes as Congressmembers on both sides of the aisle took the Pentagon to task for even conceiving of a "betting parlor" for terrorism.
John Poindexter , director of the Defense Advanced Research Projects Agency, or Darpa, is expected to resign in a matter of weeks, a senior Defense Department official said. The office sought $8 million from Congress to help a private group set up a Policy Analysis Market as a way to provide the Defense Department with "market-based techniques for avoiding surprise and predicting future events."
* * *
Mr. Poindexter , a retired Navy rear admiral, served as national-security adviser during the Reagan administration and was sentenced to prison stemming from the Iran-Contra affair. His conviction was reversed on appeal. Mr. Poindexter couldn't be reached Wednesday night.
How's this for irony? CNN/Money reports that you can now speculate on John Poindexter's future in at least one global market.
What are the chances that Poindexter is still around at the end of next month? About 70 percent according to the Poindexter contract that began being traded on Dublin-based futures exchange Tradesports. Yep, Poindexter is about to serve as an example of how accurately a futures market can predict future events -- the very idea that he was espousing.

"There must have been 15 requests for the contract in my inbox this morning," said Tradesports CEO John Delaney. "It seemed like a good idea to list it."

Tradesports biggest business is in futures contracts that allow traders to speculate (some would say bet) on sporting events, but its current events futures contracts have been steadily gaining attention ever since CNN/Money first highlighted its Saddam futures back in January.
I don't know if this is anything more than a glorified office pool -- no different from betting on the NCAA championship or when a co-worker's family might have their next child. But economists are convinced that markets can be harnessed for decisional purposes, as a quantification of collective intelligence and rational-choice. Maybe, but I'm not convinced yet.

Wednesday, July 30, 2003

A tough break for Gulf War I POWs

U.S. District Judge Richard W. Roberts handed a defeat today to 17 American POWs from the first Gulf War who sought to attach Iraqi assets currently held by the U.S. government. (Thanks to How Appealing for the link) The decision seemed like the only option for Judge Roberts as a matter of law, but he made his distaste for the outcome clear in his opinion:
Plaintiffs immediately offered to compromise their awards in an effort to settle the case amicably with their government which they had served so well and for which they honorably endured severe torture. It was an unrequited gesture. According to the government, the President has the authority to designate a variety of assets seized from Iraq as available for satisfying the compensatory awards to the POW torture victims, but has not chosen to do so. Instead, the Secretary argues that he is entitled to summary judgment on plaintiffs' TRIA claim because Congress in a supplemental appropriations bill authorized the President to make TRIA inapplicable to Iraq, and because the President in a Presidential Determination issued May 7, 2003, exercised that authority.
* * *
The Secretary's position that the POWs are unable to recover any portion of their judgment as requested, despite their sacrifice in the service of their country, seems extreme. Yet, he is correct that the Congress and the President have withdrawn TRIA as an available mechanism for the plaintiffs to use to satisfy their judgment. Prior to the date the plaintiffs in this case obtained their judgment against Iraq and their corresponding ability to attach assets under TRIA, Congress and the President made TRIA inapplicable to Iraq. As a result, defendant is entitled to summary judgment on plaintiffs' TRIA claim.
* * *
"Though the penalty is great and [the] responsibility heavy, [the Court's] duty is clear." Rosenberg v. United States, 346 U.S. 273, 296 (1953).
This decision looks like the legally correct outcome, but I don't think Judge Roberts thought it was the right outcome. Unfortunately, that can't change the law, and you can't win an appeal on the basis of sentimentality when the law's against you. This appears to be one case where the right outcome and the legal outcome don't quite match up.

Update: The Washington Post reports today that these ex-POWs have no plans for surrender after their temporary setback in the D.C. District Court.
Attorneys for the POWs called the decision "incredibly disappointing" and said they would immediately appeal it to the U.S. Court of Appeals.

"This is not what Congress could have intended -- that Iraq would be rebuilt on the backs of these victims," said Steve Fennell, a partner at Steptoe and Johnson and attorney for the former prisoners.

ACLU challenges USA PATRIOT Act in federal court

The AP reports that the American Civil Liberties Union has filed a challenge to the continued use of Section 215 of the USA PATRIOT Act in a Detroit federal court. This section broadens the authority of the Justice Department to request documents, library records, and other items about persons connected to foreign intelligence or criminal investigations. It has been the subject of much controversy since the passage of the act in Oct. 2001. The ACLU argues that this provision runs afoul of the Constitution. The suit asks the U.S. District Court to permanently enjoin the Justice Department from using Sec. 215; here's an excerpt:
153. Section 215 violates the Fourth Amendment by authorizing the FBI to execute searches without criminal or foreign intelligence probable cause.

154. Section 215 violates the Fourth Amendment by authorizing the FBI to execute searches without providing targeted individuals with notice or an opportunity to be heard.

155. Section 215 violates the Fifth Amendment by authorizing the FBI to deprive individuals of property without due process.

156. Section 215 violates the First Amendment by categorically and permanently prohibiting any person from disclosing to any other person that the FBI has sought records or personal belongings.

157. Section 215 violates the First Amendment by authorizing the FBI to investigate individuals based on their exercise of First Amendment rights, including the rights of free expression, free association, and free exercise of religion.
First off, there are a lot of hurdles this suit must pass in order to get in the door of a federal court. The federal judiciary can choose to avoid disputes for any number of reasons -- jurisdiction, abstention doctrines, mootness, standing, ripeness, etc. The ACLU is essentially suing on behalf of an amorphous group of individuals who may have been injured. The lawsuit itself admits that it does not know of any Constitutional violations under Sec. 215 because of the secretive nature of the violations themselves. This is a Catch-22 situation, because Sec. 215 prohibits disclosure of searches to the targets of those searches, or to anyone else. The ACLU's complaint does set forth statements by AG Ashcroft and others that Sec. 215 has, in fact, been used in various criminal cases. But I still think these jurisdictional and jurisprudential obstacles will be very hard to get over in this case.

Furthermore, the District Court may decline jurisdiction because matters under the Foreign Intelligence Surveillance Act ("FISA") belong to the Foreign Intelligence Surveillance Court. Moreover, the FISA Court of Review has exclusive appelalte jurisdiction over FISA issues, and that body which decided last year that several parts of the USA PATRIOT Act were constitutional. The Supreme Court declined a request by the ACLU to review this decision.

Whatever the outcome, this is going to be a really interesting skirmish in the battle over the USA PATRIOT Act. I suspect that neither side will back down until the Supreme Court rules on the matter, and that may take years.

Recommended reading from RAND

The RAND Corporation -- a private think-tank that does the bulk of its work for the Defense Department -- has put out two outstanding and timely pieces of research that deserve a look. RAND has also recently put its incredible terrorism database online, in a way that's accessible to the public.

- America's Role in Nation-Building: From Germany to Iraq. Abstract: "In Iraq, the United States is facing its most challenging nation-building project since the 1940s. The authors draw lessons from seven case studies—Germany, Japan, Somalia, Haiti, Bosnia, Kosovo, and Afghanistan—then apply these to the Iraq case. The results suggest that nation-building will be difficult but possible. Success will, however, require investing sufficient financial, military, and political resources—and time." Hmmm... sounds eerily familiar, doesn't it?

- New Challenges, New Tools for Defense Decisionmaking. "The collapse of the Soviet Union and the end of the Cold War—and then the terrorist attacks of September 11, 2001—transformed the task of American foreign and defense policymaking. This book outlines the dimensions of that transformation and sketches new tools for dealing with the policy challenges—from modeling and gaming, to planning based on capabilities rather than threats, to personnel planning and making use of "best practices" from the private sector." This book surveys some of the most current thinking out there on how to best plan for the defense sector. I'm not sure all these ideas are right, but they're certainly provocative and worth reading.

- The RAND-MIPT Terrorism Incident Database. The RAND Corporation has finally put its outstanding database on terrorism incidents online. "The MIPT Terrorism Database System acts as a "one-stop shopping place" where authorized users can go online to find comprehensive information and intelligence on terrorism. . . . The system includes two RAND databases, the RAND Terrorism Chronology Database and the RAND-MIPT Terrorism Incident Database. The RAND Terrorism Chronology Database records international terrorist incidents that occurred between 1968 and 1997, while the RAND-MIPT Terrorism Incident Database records domestic and international terrorist incidents occurred from 1998 to present."

Alright... so it's a pretty wonkish list. But I guarantee you'll come away from reading this stuff well informed, if not well entertained. If you do choose to read these two books, you may also want to order a copy of Harry Potter for balance.

An organized enemy or a decentralized enemy?
Which one is better for U.S. forces fighting a guerilla war in Iraq?

Mickey Kaus raises that issue in his Slate column, and I think he's right on target. The question has come up in relation to the shape of the enemy we face today in Iraq. Some have argued that we currently face a hierarhical, coordinated enemy force that is choosing to fight us by means of guerilla warfare. I think the evidence points more towards a loosely organized network of guerillas that share common goals, but no recognizable command structure. Fareed Zakaria of Newsweek agrees, as this transcript from This Week shows, but I disagree with him about the implications of this conclusion.
[M]y sense is that the resistance is also getting less centralized and more sporadic, which is the crucial issue because clearly we are facing guerrilla operations but this is not a guerrilla war because you do not have the same kind of central control. If you think of the Vietnam analogy, which many people are foolishly making, that was the case where you had an inexhaustible supply of people, long supply lines into North Vietnam and the guerrillas were being helped by not just the north Vietnamese government but two superpowers, China and Russia. None of that applies here. Here you have isolated bands of Fedayeen who kind of decide let's look at this road and see if you -find Americans coming down, take them out. Terrible tragedy but a very different circumstance. ... [snip] By and large the attacks do not seem to have the character of an organized resistance in the sense they're not advancing any objectives and finally, frankly, I mean, the people I've talked to say there's absolutely no, within the Pentagon, say there is absolutely no evidence that it's centrally directed.
Zakaria's right about the threat, but wrong about the implications. Mickey has some great thoughts on this, but I'd like to offer another reason why Zakaria's conclusion is off. It's clear that these two organizational models present *different* threats, but it's not clear what threat is better for U.S. forces. I would argue that a networked, decentralized enemy is far more dangerous for American forces than a hierarchically organized enemy, regardless of what our experience was in Vietnam.

A bunch of folks at RAND and the Naval Postgrad School have done work on network-centric warfare that looks at the implications of decentralized, network organizations in the conduct of warfare. The general conclusion is that it takes a network to fight a network. (See, e.g., the work by John Arquilla and Bruce Hoffman in particular) If this is true, this is very bad for the U.S., because our command structure is anything but a network. The U.S. military command structure is incredibly structured and hierarchical, and this handicaps us in many ways (beyond the scope of this note) for dealing with agile, flexible, decentralized, networked threats.

Similarly, our homeland security apparatus is bureaucratized and hierarchical in a way that hobbles it. I hate to keep beating the John Boyd "OODA Loop" horse, but this is the best framework for understanding the core problem. That core problem is this: how can a large, cumbersome, heavily regulated, bureaucracy like the DHS (or DoJ or DoD) respond to an agile, flexible, small, decentralized, networked, innovate threat like Al Qaeda? Answer: it really can't.

A decentralized enemy that fights from many different directions with loose coordination is precisely the kind of threat we are not organized to defeat. We may be able to do so with brute force and ignorance, but doing so will be quite costly.

More to follow on the implications of network-centric warfare for the war in Iraq and the war on terrorism...

Grilled Wolfowitz
Senate panel throws Pentagon official on the barbie, so to speak

The Los Angeles Times and the Washington Post both report the "grilling" of Deputy Defense Secretary Paul Wolfowitz yesterday by the Senate Foreign Relations Committee. Frustrated by American progress in Iraq and upset by obfuscation on the part of Wolfowitz and Undersecretary of State Josh Bolton, several senators engaged in pointed exchanges with the two men in the open committee meeting. Here's a sample of the discourse from the LA Times:
Sen. Joseph R. Biden Jr. of Delaware, the ranking Democrat on the committee, twice got into heated exchanges with Wolfowitz over the question of how much the Iraq operation is costing.

"I think you're going to lose the American people if you don't come forward now and tell them what you know, that [the reconstruction effort is] going to cost tens of billions of American taxpayers' dollars and tens of thousands of American troops for an extended period of time," Biden said, his voice just below a shout.

Referring to Defense Secretary Donald H. Rumsfeld's penchant for saying certain things are "unknowable," Biden admonished Wolfowitz: "Please don't waste our time or yours by saying the future is simply unknowable. Pick a number. Pick an idea."
Here's a sample of what the Washington Post reported:
"I agree with the rest of the members of this committee that I think you, Mr. Bolten, should be more forthright in terms of what the costs are going to be so that we have some idea, and the American people [know], how long, how much," said Sen. George V. Voinovich (R-Ohio).
* * *
When Bolten said that the administration did not plan to ask for funds in the fiscal 2004 budget for sustaining 150,000 troops in Iraq and rebuilding the country because it didn't know what the precise costs would be, Sen. Joseph R. Biden Jr. (Del.), the committee's ranking Democrat, erupted.

"Give me a break, will you?" he said. "When are you guys starting to be honest with us? Come on. I mean, this is ridiculous."
* * *
Sen. Jon S. Corzine (D-N.J.) said that while six service members from New Jersey have been killed, "I don't feel comfortable I have the information to be able to argue that we want that patience that I know we need to have."
Exactly. I've said this over and over. America is sacrificing a lot in Iraq on a daily basis. These sacrifices are not abstract; every casualty represents some American son or daughter with parents and friends in the communities from which they came. The Army's plan for Iraq calls for large numbers of National Guard soldiers to be mobilized, which equates to further sacrifice on the part of the American people. I don't think it's too much for these senators to ask:

- Why are we in Iraq?
- What will it cost to succeed in Iraq?
- What is the end state for our mission in Iraq?
- What is our plan to get to that end state, and how long might that plan take?

Enemy Combatants II

Today's Washington Post has the second article in a two-part series on law and terrorism -- this time on the case of alleged "dirty bomber" Jose Padilla. The article discusses the Padilla case from the perspective of Padilla's lawyers, so it has some slant towards that perspective. Nonetheless, it does frame the legal issues correctly:
Court battles in these cases have centered on two primary questions. First, does the president have the constitutional authority to designate citizens suspected of terrorism as enemy combatants and hold them incommunicado, without charging them with crimes? So far, courts hearing the Hamdi and Padilla cases have ruled that he does, though the challenges continue.
Issues of law and terrorism have been subject to a great amount of spin over the last two years since Sept. 11. To many, the issues have been reduced down to a deceptively simple balancing between "liberty" and "security". Unfortunately, it's not that easy. I highly recommend reading some of the original documents in these cases, such as Judge Michael Mukasey's December 2002 order in the Padilla case, for a greater understanding of how all the important issues play out in these cases. Findlaw.Com has built an incredible repository of documents on terrorism, and it's a great resource for this endeavor.

Tuesday, July 29, 2003

The threat of "enemy combatant" status
Prosecutors delegitimize this status by using it to extract plea bargains

Today's Washington Post has a really good article on the case of the "Lackawanna Six" -- six men that pled guilty to providing support to Al Qaeda and attending terror raining camps in Afghanistan. As someone who teaches and writes on issues of law and terrorism, my eyes got wide when I read the piece of the story describing the tactics used by the government to get the plea bargain:
Why would six of their young men so readily agree to plead guilty to terror charges, accepting long prison terms far from home?

"These knuckleheads betrayed our trust, and we're disgusted with their attendance at the camps in Afghanistan," Mohammed Albanna, 52, a leader in the Yemeni community here, said of the six men who have admitted to attending an al Qaeda training camp two years ago. "But the punishment doesn't fit the crime, or the government's rhetoric. It's ridiculous."

But defense attorneys say the answer is straightforward: The federal government implicitly threatened to toss the defendants into a secret military prison without trial, where they could languish indefinitely without access to courts or lawyers.

That prospect terrified the men. They accepted prison terms of 61/2 to 9 years.

"We had to worry about the defendants being whisked out of the courtroom and declared enemy combatants if the case started going well for us," said attorney Patrick J. Brown, who defended one of the accused. "So we just ran up the white flag and folded. Most of us wish we'd never been associated with this case."
This is not an isolated incident. On June 22, I wrote about another instance of the government using this tactic to extract a guilty plea from a defendant in federal court. The New York Times reported this in their story about alleged Al Qaeda operative Iyman Faris, who was accused of plotting to blow up the Brooklyn Bridge.
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: There are several implications for this kind of behavior for the government:

The first is that it really does extend the threat of "enemy combatant" status to a broader segment of the population than was previously thought. When the men at Guantanamo were labeled enemy combatants, we could rationalize it by saying "They were picked up in Afghanistan, on a battlefield, with some plausible connection to the war on terrorism." When men like Jose Padilla were so designated, we could arguably say he was an enemy guerilla seeking to wage war on the streets of America. But when we start to see men charged in federal court, treated as civilians by the system, and then threatened with this status, I think it casts doubt on the protections afforded to those in the criminal justice system.

Second, I think this delegitimizes the label of "enemy combatant" itself. That term has tremendous weight in court. The government is arguing in the Hamdi and Padilla cases that it should not even be questioned by the courts about this designation. Yet, the government casually uses this label as a threat in cases where the defendants are being charged in civilian court.

Third, the casual use of "enemy combatant" status will hurt the government as it tries to win the trust of the American population. A lot has been written about the proper balance between liberty and security since Sept. 11. It takes political capital to pass measures like the USA PATRIOT Act and Homeland Security Act, and it will take more political capital to pass future anti-terrorism laws. That political capital is built on a foundation of trust between the people and the government; that the people trust the government to abuse their liberty in the name of security. I think the average American will see this story and think the government is abusing its public trust, and going too far in its war on terrorism at the expense of civil liberties.

Update: An informed reader writes with a link to a story in the Wall Street Journal (subscription required) from April 2003 reporting this same story about the Lackawanna Six. When something appears in the New York Times, Washington Post, and Wall Street Journal (papers which lean to the left, center and right, respectively), you can pretty much take it as true. Scot Paltrow adds an interesting dimension to this story that I hadn't considered:
In the Lackawanna case, there were indications that the government's case wasn't as strong as officials in Washington had characterized it after the arrests. The government had called the arrests a major victory in the fight against terrorism. But Michael A. Battle, the U.S. attorney in Buffalo, confirmed the government has found no evidence the defendants were involved in any violent plot.

A former senior FBI official in Washington, who was involved in supervising the investigation for months before the arrests were made, said in an interview that secret surveillance revealed no sign that the men had any hostile intent. That contrasts with the portrayal of the defendants by top government officials, including President Bush in his State of the Union address, as a dangerous terrorist cell waiting to carry out an attack.

Guilty pleas also enable the government to sidestep a crucial, unsettled legal issue: Whether mere attendance at a training camp amounts to providing "material support and resources" to a terrorist organization, under terms of a 1996 law. While the issue hasn't been decided in court, the charges appear to conflict with specific guidance in the Justice Department's Manual for U.S. Attorneys, which says the charge requires evidence of continuing work on behalf of terrorists.
A similar issue came up in the John Walker Lindh case, where U.S. District Judge T.S. Ellis III held that the material support statute (18 U.S.C. 2339b) did not unconstitutionally infringe on Lindh's rights. But Lindh did a lot more than merely attend a training camp -- he admitted to carrying weapons and explosives as part of the Taliban. Jess Bravin reported at the time of Lindh's plea bargain that this threat was made in his case as well, and that it was probably a factor in Lindh's decision to plead guilty in exchange for a 20-year sentence.
Lawyers in the case said informal talks about a plea bargain began six weeks ago, and that the defense initially proposed a 10-year sentence. President Bush approved a 20-year term Thursday. The two sides spent the weekend hammering out the particulars, and signed off on the terms around 1 a.m. Monday.

Mr. McNulty [the U.S. Attorney] called the deal "an important victory for the American people," adding that it proved "the criminal justice system can be an effective tool in combating terrorism."

In recent months, the Bush administration hasn't been so sure. After coming up against such varying hurdles as Mr. Lindh's crackerjack defense team and the erratic courtroom behavior of Zacarias Moussaoui, who is representing himself at trial on charges of conspiring in the Sept. 11 hijackings, officials increasingly are seeking to bypass the justice system altogether.

Instead, officials have designated two U.S.-born men taken in antiterrorism operations as "enemy combatants," holding them in military jails without charge or access to lawyers.

And according to chief defense lawyer James Brosnahan, prosecutors suggested Mr. Lindh might face the same fate should he be acquitted of criminal charges, adding to the pressure for a plea deal.
Final Thoughts: It's not clear how the courts will treat 18 U.S.C. 2339b when it comes before them. First, some defendant has to challenge the government and not be carted off to a military brig as an enemy combatant. Second, the defendant will need to overcome all of the judicial deference issues which have dominated the major terrorism cases to date. Third, the challenge will need to be made on the right facts -- someone who purely provided nominal material support to a terrorist organization, such as speech or advocacy on their behalf.

Had the Lackawanna Six not pled guilty, they might have been the first defendants to take this issue up through the courts. But the issue for these six men is now moot.

Interesting stories at DefenseTech

Noah Shachtman has some great stuff at his site this morning, including:

- An excerpt from his Wired news article on LifeLog, a Pentagon project which would create a system capable of recording everything you see, hear, sense, and know. The object is a personal digital assistant capable of supporting field commanders and bolstering their memories. But the implications resemble a cross between Total Recall and Minority Report...

- A note on the Pentagon's new policy analysis market project -- also run by DARPA, the folks who brought you the Internet, Total Information Awareness, and Lifelog. My first reaction to this was that it was absurd. But Noah has some interesting links on the subject, including some economics studies that lend credibility to the effort.

Update: CNN reports that the Pentagon has cancelled its "terrorism betting parlor" project.

Still not enough troops to do the job right

Retired General Barry McCaffrey argues in today's Wall Street Journal (subscription required) that we need to bolster America's military by quite a bit in order to meet our current global commitments. McCaffrey's no amateur at this stuff -- he commanded the 24th Infantry Division in Gulf War I, and after retiring with 4 stars, served as President Clinton's drug czar. You also can't dismiss McCaffrey as a "liberal critic" who wants to see us fail in Iraq -- a brush which has been used by some (e.g. Ann Coulter) to tar moderate and liberal politicians on this issue. In blunt language, he writes that we don't have the resources to get the job done.
Right now, U.S. active and reserve force-structure of infantry, military police, civil affairs, special operations, aviation and field logistics formations are inadequate. Contractors and allies (now a tiny 7% of the coalition supporting the effort) can mitigate some of the burden in Iraq. And if everything goes to plan, an additional 40,000 allies, organized in three multinational divisions, will be on the ground in Iraq by September. But we should be skeptical about their military effectiveness, independent funding, and logistics support. The only long-term solution is to create a well-trained and -equipped Iraqi police, civil defense corps, border guards, army and contract security force. L. Paul Bremer, chief administrator, and Lt. Gen. Ricardo Sanchez, commander of U.S. ground forces, are seized of this effort. We must see to it that they have the cash, equipment and training resources required for the mission.

Gen. Jack Keane, one of the most experienced and thoughtful Army officers we have, has laid out the global rotation plan for the near term. If you analyze the plan, the U.S. Army is very close to being overextended. The risk is too great. Our active strength of 491,000 is too small. Twenty-four of our 33 active brigades (73%) are deployed. Fifteen of our 45 National Guard battalions are deployed. Some 368,000 Army soldiers are deployed to 120 foreign nations. We are in a global war on terror with inadequate forces.
McCaffrey's plan is to mobilize an extra 7 National Guard brigades on top of the 2 included in Gen. Keane's rotation plan. After those reservists demobilize at the end of a 1-year tour, McCaffrey would keep those "units" on active duty, but man them with additional soldiers recruited/trained in the intervening year. It's a viable concept, but it's also one that would cost a lot of money. This plan would also take congressional approval, since the end strength of the military is limited each year by the National Defense Authorization Act. This may be the right answer -- but it will require tough choices (e.g. missile defense funding vs. troops) and hardball politics to make it happen.

Monday, July 28, 2003

Update on 3ID decision to remove embedded reporters

Fred Kaplan writes in Slate that this move may be one of the first public signs that the Bush Administration knows things are going badly in Iraq. (The other sign is an attempt to enlist James Baker as the new proconsul for Iraq.) I wrote on this decision by MG Buford Blount last week, after seeing the news in the European Stars & Stripes:
On Monday, the 3rd ID commander, Maj. Gen. Buford Blount, decided to stop allowing reporters to spend time with his troops, other than to gather information for pre-approved "news features," according to an e-mail response from Lt. Col. Birmingham, 3rd ID spokesman in Baghdad.

The 3rd ID is "no longer embedding media for short stays, effective the beginning of this week," Birmingham said.

The only exceptions to the policy will be made for three journalists who were embedded with the unit during the war and have subsequently returned, Birmingham said.

Blount "instituted the new ground rules with the intent to give soldiers some opportunity to unwind among themselves," Birmingham said.
Fred Kaplan thinks something is rotten in the E-Ring, and I think he's right. In his Slate piece, he implies that the Bush Administration sees saturating media coverage as a hindrance to further nation-building efforts. In short, too much coverage of casualties, adverse conditions, unfriendly locals, and griping soldiers may hurt American resolve to persevere in the face of all that adversity.
Now, however, the story has turned sour, to the point where two soldiers with the 3rd I.D., who had grown all too accustomed to talking freely with the press, publicly lambasted not just the brass but the political bosses—on network television, faces exposed, names on the record—in startlingly stark language. One of the soldiers told ABC News, "If Donald Rumsfeld was here, I'd ask him for his resignation." The other said, "I've got my own 'Most Wanted' list. ... The Aces in my deck are Paul Bremer, Donald Rumsfeld, George Bush, and Paul Wolfowitz."

After that exhibition, the spokesman for the 3rd Infantry issued a statement that the unit was "no longer embedding media for short stays, effective the beginning of this week." The unit's commander, Maj. Gen. Buford Blount, went further, deciding, as Stars and Stripes put it, "to stop letting reporters spend time with troops, except to gather information for pre-approved 'news features.' "

It is unclear whether this was Blount's decision or the Pentagon's. However, since embedding was a Rumsfeld initiative (specifically, conceived by his then-assistant secretary for public affairs, Victoria Clarke), its termination almost certainly could not have been ordered without the permission of Rumsfeld or his aides. And if someone so high up has decided that the image of the mission would now do better without embeds trailing along, that means they know the era of casually good stories is over.
There's some irony to this... The most pro-military coverage of the war -- arguably of the last decade -- came from the reporters who were embedded with the troops on the march to Baghdad. Even when covering bad news, like the shooting of Iraqi civilians at a checkpoint, the embedded reporters generally told the story from a grunt's perspective in a way that would make their parents proud. The most skeptical coverage came from the rear, from reporters at HQ in Kuwait or further back in Washington.

Removing the embedded reporters is likely to result in less "candid camera" moments for our troops in the field. (No more quotes asking for the SecDef's resignation) But it may result in a more negative spin in general for the military. That would be ironic, given the reasons the administration has for removing the embedded reporters from 3ID.

Congratulations to Joe Doherty and his colleague Lynn Lopucki of UCLA Law School for their research on bankruptcy which earned them this mention in the Hearsay column of The Washington Post.
According to researchers at the UCLA School of Law, bankruptcy costs for the largest U.S. companies in Chapter 11 reorganization have dropped 57 percent in real dollars since the 1980s. But the length of time that cases are in bankruptcy has decreased almost as much -- 50 percent -- which the researchers say roughly correlates with the drop in costs.

Yes, say Lynn M. LoPucki and Joseph W. Doherty, the bankruptcy lawyers are doing quite well. As The Washington Post reported last month, legal fees in the Enron Corp. bankruptcy have exceeded $496 million, making it the most expensive case ever.

The researchers also found that fees and expenses in 48 cases they studied totaled more than $600 million. Eighty percent went to firms working for debtors; most of the rest went to those working for creditors. And less than 1 percent went to professionals working for lowly shareholders, who usually are at the end of the line when it comes to recovering their losses.

Among the other nuggets in LoPucki's study, which can be found at, is a chart showing that the more firms there are in a bankruptcy case, the higher the fees.

LoPucki wanted to title the chart "Pigs at the Trough." But, then he decided, no, "it lacks the dignity required for a scholarly paper."

Notes on the offense of treason

Stop the Bleating, another military/legal affairs blog, has a great note today on the history of the treason clause in the U.S. Constitution. Matt takes on the thorny issue of whether you can prosecute someone for espousing views that might amount to treasonous speech, whatever that may be. He concludes:
. . . I'm not entirely sure that we need to resort to any new rules of law to resolve the issue that Bell identifies. You see, in my own research on the topic I came to the realization that the overarching purpose of the Treason Clause was primarily to protect peaceful political dissent. But we have something in the Constitution now that wasn't present when the Clause was enacted, and it protects such dissent quite well. It's called the First Amendment, and I think it may be up to the task of dealing with situations like the Al Qaeda Al scenario that Bell proposes.

Going on the offensive

Tom Ricks has an outstanding piece in today's Washington Post, which he wrote from Iraq where he is currently reporting on the Army's 4th Infantry Division. The piece assesses the latest campaign by American forces to quash the Iraqi insurgency. Using a mix of unconventional tactics and intelligence-driven operations, American forces appear to be winning some significant victories -- but at a cost. The whole story's worth reading for an understanding of what's going on over there right now.
Despite their losses, Army officers and soldiers asserted that they are making solid gains in this region, where most of the fighting has taken place and where about half the 150,000 U.S. troops in the country are posted.

At the beginning of June, before the U.S. offensives began, the reward for killing an American soldier was about $300, an Army officer said. Now, he said, street youths are being offered as much as $5,000 -- and are being told that if they refuse, their families will be killed, a development the officer described as a sign of reluctance among once-eager youths to take part in the strikes.

At the same time, the frequency of attacks has declined in the area northwest of Baghdad dominated by Iraq's Sunni minority, long a base of support for Hussein. In this triangle-shaped region -- delineated by Baghdad, Tikrit to the north and the towns of Fallujah and Ramadi to the west -- attacks on U.S. forces have dropped by half since mid-June, military officers reported.

That decrease is leading senior commanders here to debate whether the war is nearly over. Some say the resistance by members of Hussein's Baath Party is nearly broken. But other senior officers are bracing for a new phase in which they fear that Baathist die-hards, with no alternative left, will shift from attacking the U.S. military to bombing American civilians and Iraqis who work with them.

In addition, there is general agreement among Army leaders here that in recent weeks both the quality and quantity of intelligence being offered by Iraqis has greatly improved, leading to such operations as the one last Tuesday in Mosul that killed Hussein's sons, Uday and Qusay.

Col. David Hogg, commander of the 2nd Brigade of the 4th Infantry Division, said tougher methods are being used to gather the intelligence. On Wednesday night, he said, his troops picked up the wife and daughter of an Iraqi lieutenant general. They left a note: "If you want your family released, turn yourself in." Such tactics are justified, he said, because, "It's an intelligence operation with detainees, and these people have info." They would have been released in due course, he added later.

The tactic worked. On Friday, Hogg said, the lieutenant general appeared at the front gate of the U.S. base and surrendered.
Update: Mark Kleiman, a UCLA professor who I know and respect, thinks this is unethical conduct -- and possibly unlawful under the laws of war.

Mark (with an assist from Atrios) cites to Art. 75 of Protocol I to the Geneva Convention, as his support for the contention that this is unlawful. Unfortunately, the U.S. has not signed Protocol I, and thus cannot be bound by it by the conventions of positivistic international law.

Of course, that's just a legal footnote about Protocol I. The U.S. did sign the 4th Geneva Convention of 1949, and it explicitly precludes hostage taking in armed conflict:
Art. 34. The taking of hostages is prohibited.
There is also a norm of international law known as "distinction" -- which literally means distinguishing between combatants and non-combatants. This principle would probably preclude the kind of conduct conducted by COL Hogg in Iraq, since the Iraqi Lt. Gen.'s family members are unquestionably non-combatants.

Doing what's unlawful is one thing; doing something which is counter-productive is quite another. We're trying to rebuild Iraq as a kinder, gentler place -- a nation that contributes to regional stability, economic growth, personal liberty, etc. To accomplish our mission, we need to win the Iraqis' hearts and minds. Kidnapping the wives and daughters of our adversaries is not a way to win hearts and minds -- it's a way to squeeze their private parts. This is the kind of tactic that can backfire, bigtime. Especially if your opponent is willing to go a step further in his atrocities than you.

America's finest sons and daughters

Ruth Voshell Stonesifer writes in the Philadelphia Inquirer this morning about her son -- Kristofor Stonesifer -- who was killed in combat during the first days of combat in Afghanistan. Her essay discusses some of the reasons her son went to war, and some of her feelings since his death in 2001.
My son was a quiet and thoughtful patriot. When I questioned him about Sept. 11, while he was still at Fort Benning, Ga., and before he went overseas, he spoke only about his fellow Army Rangers chomping at the bit to right the wrongs perpetrated on America that day. But Kris expressed no such zeal.

I always found it hard to imagine he would be able to kill another human being. After his death, it did not surprise me to hear that he had removed a cast from his ankle to be on that plane bound for the Middle East. He wanted to be there to protect his buddies. That is why he went, not to find some ringleader or a stockpile of weapons or chemicals. His buddies would probably say the same.

Since my son died in the Middle East and I became a Gold Star Mother, I am more sensitive to this current debate, along with the rest of the families whose sons or daughters did not come home from this battle.

When we see reported on the news only the turmoil instead of the progress being made by the Iraqi people, we feel intense frustration - even though we have been assured by everyone from our President on down that our loved one who died in the line of duty is an "American hero." We now begin to wonder if the other adage told to us is true: that "they did not die in vain."
Steve Lopez, one of the Los Angeles Times' best columnists, also writes today about the mother of a soldier killed in combat.
Evan Ashcraft was killed last week. He was 24 and an Army sergeant in the 101st Airborne Division. When his mother invited me to visit with her, she had only one purpose. She wanted to honor her boy, and to put a human face to the daily tally of casualties.

"I don't want them to be just numbers," said Bright, human resources director for a North Hollywood aerospace company. "This anguish is unspeakable, and another family goes through it every day. We're not speaking enough about the losses."
* * *
"I think it's normal to say, 'OK, I lost a son. Was this for a good cause?' But what Jane is saying is that she lost a son, and people need to know he was not a number," Jim Bright says. "He was someone to be honored and remembered. She and I both believe it transcends political consideration. Kids are dying, and that is what it is. Kids are dying."
Thoughts... I think the essential question is precisely "Was this for a good cause?" America has sacrificed a great number of its sons and daughters on the fields of Iraq for some cause -- whether it's WMD, regional stability, prevention of terrorism, oil, humanitarian goals, or something else. Some people have questioned the efforts of reporters (such as Josh Marshall) in seeking out the truth about the Bush Administration's casus belli -- our reason for going to war with Iraq. I don't think such queries are misplaced. If we are going to send our finest sons and daughters into harm's way, then we deserve to know as a nation the reasons for doing so.

The lawfulness of killing in war

John Yoo, a UC Berkeley law professor who recently served as a political appointee in the Justice Department, opines in the Weekly Standard that there is no reason to wring our hands over the killing of Saddam's sons. This essay is one of the better ones I've seen on the subject. It concisely sums up the law and states why no legal problem exists with last week's targeted killing of the two Hussein men.
No law prohibits the targeting of specific enemy leaders in war. Assassination is different: the murder of a public figure for political reasons. The murders of Martin Luther King Jr., John F. Kennedy, and Abraham Lincoln were assassinations. By contrast, the killing of the enemy in combat is protected by the laws of war. As Hugo Grotius, the father of international law, observed in 1646, "It is permissible to kill an enemy." Legitimate military targets include not just foot soldiers, but the command and control structure of an enemy's military, leading up to its commander in chief.

Therefore, it is perfectly legitimate for the United States to kill Hussein's sons, and ultimately Hussein himself, just as it is to kill members of the Iraqi military who continue to fight against the coalition. It is legal for the Armed Forces to use a Hellfire missile to kill Osama bin Laden and his lieutenants, who are enemy combatants in a war with the United States. While President Ford and his successors have banned assassinations by executive order, killing Hussein or bin Laden would not be an assassination but a lawful use of force against an enemy in war.

Killing enemy personnel is the very purpose and means of conducting warfare. While international law prohibits killing an enemy "treacherously," this has never been understood to prohibit the targeting of specific military leaders. Rather, it is a ban on soldiers' disguising themselves as civilians or Red Cross workers, or otherwise seeking to blur the line between combatants and noncombatants in order to give themselves a military advantage. It does not prohibit the use of surprise, ruses, or stealthy tactics to kill enemy personnel.

Assessment: women in combat

A semi-official after-after review of Gulf War II has concluded that women performed effectively in combat, after a decade of policy changes that opened up a myriad of opportunities close to the front lines. Women in all four services saw combat in Iraq, whether as helicopter pilots, MPs, chemical warfare specialists, or logisticians. Anthony Cordesman, now a professor at CSIS, wrote the study, which says:
Women made up roughly 15 percent of U.S. military forces during the Iraq War, ranging from a high of 19 percent in the Air Force to 6 percent in the Marines. The number of women in high-risk jobs increased strikingly compared to those in the Gulf War, although women are still barred from ground combat positions. Perhaps the most striking aspect of this change is that there are no meaningful reports of gender problems in combat or high riskpositions. While scarcely unexpected, this experience is a further refutation of the arguments that women cannot perform such duties or will disrupt operations in wartime.
Analysis: Notwithstanding the ordeal of PFC Jessica Lynch, I think this conclusion is right on. In general, women performed effectively in the gulf, proving the wisdom behind the policy changes in the 1990s that opened more combat and combat-support roles to women. I wrote about this in December 2002 in the Washington Monthly, saying essentially the same thing as Cordesman.
Indeed, if mixed-gender units perform as they have in the California desert--and in Somalia, Haiti, Bosnia, Kosovo, and Afghanistan--it would strengthen the integrationist trend in several ways. The least likely possibility would be the elimination of all rules barring women from full combat service, from special forces to light infantry. But even if this were to happen, surveys suggest that only a small number of women would apply. And only a fraction of those who do would have the physical ability and fortitude to make it through, say, the crucible of Army ranger school, from which a majority of qualified men wash out before graduation.

The second, and more likely, possibility is that certain combat jobs currently off-limits to women would be opened. For instance, women can currently serve in Patriot air-defense units, but not in short-range air-defense or offensive artillery units closer to the front--even though the skill levels are virtually the same. Female soldiers frequently win the Army's highest awards for marksmanship and even participate on the U.S. Olympic marksmanship team--but outside the MPs cannot be snipers. If Saddam's Baathist regime falls to U.S. forces that include women, these kinds of job limitations may collapse, too.

Finally, a successful showing by female soldiers is sure to increase pressure on the Army to end the subtle day-to-day discrimination that remains a fact of life for so many female soldiers, from anachronistic "wives clubs" in some units to assignment policies that place a premium on female soldiers willing to defer childbearing indefinitely.

Even if more opportunities for women open up, the changes are unlikely to be as radical or disruptive as many imagine, for a simple reason: Not that many women are likely to take advantage of the opportunities. A recent RAND Corporation study indicates that women have not flooded into every new specialty opened to them during the 1990s. Some, such as Army bridge crewmembers, have seen an increase. But the number of, say, female Marine Corps F-18 pilots has not really changed. This is true in part because the services still make it difficult for women to enter these occupations by setting quotas that limit their number. But it is also because of a lack of interest. According to a RAND survey, while more than 75 percent of military women supported the general idea of women in combat, only 10 to 15 percent of those said they would actually pursue such jobs if given the option. "Enlisted women are much less keen on rushing off to combat than female officers," observes Northwestern's Moskos.

In other words, even in the event that the Army opens combat jobs to women, those opposed to the idea may not have much to worry about. And besides, the more women like Capt. Streigel who serve bravely and effectively in an upcoming Iraq war, the more female generals we'll see a few years down in the road--and the more likely the issue of women's role in the military will work itself out.
Bottom Line: Women went to the gulf, they fought, and they did as well as the men they served with. Today's military is a remarkably diverse organization, and it knows how to build cohesive winning teams regardless of the backgrounds of the soldiers in those units. Male, female, black, white, brown -- it makes no difference. Everyone wears green (or desert camo), and that's what counts.