Saturday, September 20, 2003

Army chaplain arrested for espionage -- update & analysis

Giving credit where credit is due, The Washington Times is the paper that came through with the scoop on Captain Yee; I picked up on the AP version of the story that originally ran on their pages. I pulled up the Washington Times story, written by veteran Pentagon reporter Rowan Scarborough, to find the details as originally reported. Mr. Scarborough didn't disappoint -- he has a report tonight on the precise charges that Captain Yee is facing.
The Army has charged Capt. Yee with five offenses: sedition, aiding the enemy, spying, espionage and failure to obey a general order. The Army may also charge him later with the more serious charge of treason, which under the Uniform Code of Military Justice could be punished by a maximum sentence of life.
* * *
Capt. Yee had almost unlimited private access to detainees as part of the Defense Department's program to provide the prisoners with religious counseling, as well as clothing and Islamic-approved meals. The law-enforcement source declined to say how much damage Capt. Yee may have inflicted on the U.S. war against Osama bin Laden's global terror network.

The source said the "highest levels" of government made the decision to arrest Capt. Yee, who had been kept under surveillance for some time.

The military's "convening authority" — the officer who would authorize criminal proceedings — is the commander of U.S. Southern Command in Miami, which oversees the prison at Guantanamo.
Analysis: Now I have some more facts on which to base my analysis. First, if you're interested in this case, I recommend reading a primer on the military justice system. The National Institute of Military Justice has a few good primers on its site, and I would also recommend this piece I wrote on the system from last year. Also, the Manual for Courts Martial that Captain Yee will be tried under is a good reference to have for this case. Finally, the actual articles of the Uniform Code of Military Justice are codified in Title 10, and are good to have as references too.

Here are some general notes and points of analysis, in no particular order:

(1) The penalty for the crimes charged is death, according to the text of the articles under which Captain Yee is charged according to the Washington Times story. The Times reports that the maximum penalty as life, but they're wrong according to what the UCMJ says. These articles include: sedition, aiding the enemy, spying, espionage and failure to obey a general order. No military court has imposed the death penalty for these charges since Private Slovik's case at the end of WWII. But I would not say that is an impossibility in this case, if the facts are as alleged.

(2) One legal question to be asked is whether these offenses were committed in wartime or not. If they were committed in wartime, the available penalties increase dramatically. It's fairly certain that we are currently in a state of armed conflict, if not a state of declared war, but this is a legal question that will certainly be asked in this case. The government will certainly argue that we are at war, and thus the higher penalties are available. Indeed, it's hard to see how you could have "aiding the enemy" if one were not at war. But again, this is a question of law for the military judge to resolve, and one that will probably be appealed to the intermediate appellate court and the Court of Appeals for the Armed Forces.

(3) Captain Yee will undoubtedly be pressured to plead guilty, in a quid pro quo where he gives information to the government in exchange for a life sentence. I imagine that he has already refused to plead guilty at this juncture, given the way the government is proceeding in this case.

(4) Military commissions v. military courts martial. I do not think we will see Captain Yee's case transferred to a military commission. For one, he is statutorily entitled to a general court martial on these charges as an American serviceman, and it would be very hard to overcome that in court. Second, the military system already has all the safeguards the Pentagon wants in a court -- protection of classified evidence, a jury of military officers, a secure setting, and defense attorneys with security clearances. I don't see any added value in a military commission here. Moreover, a high-profile trial (as this will be) will showcase the military justice system, which is generally regarded by experts as a fairer system than the federal criminal system.

(5) Unlawful command influence will be an issue in this case. Note this quote from the Washington Times story: "The source said the "highest levels" of government made the decision to arrest Capt. Yee, who had been kept under surveillance for some time." That means the decision to arrest Captain Yee came from 1600 Penn. Ave and the E-Ring of the Pentagon, and that prosecutorial decisions will likely have to be vetted in both places as well. Unfortunately, the UCMJ expressly prohibits command influence on the actual trial, and the actual decision to bring charges. The Commander of SouthCom will have to do his best to resist pressure from the President and SecDef here if he wants his verdict to stand. I guarantee that Captain Yee's defense counsel will raise this issue on appeal.

I plan to follow this story as it develops. More to follow...

See also the sites hosted by Donald Sensing and Winds of Change for some interesting commentary and links regarding Captain Yee. As I find more good links on the subject, I'll post them. I imagine we'll see a lot more reporting on this case than those of enemy combatants Jose Padilla and Yaser Hamdi, because the depth of the betrayal is so great in Captain Yee's case (assuming the facts are as alleged).

And also check out Jeff Quinton's notes at Backcountry Conservative, which includes some really good research into CPT Yee and various other issues in this case. Among other things, Quinton has a State Department story on CPT Yee, a Seattle Post-Intelligencer profile of CPT Yee, and a DoD press release discussing the Muslim clerics currently serving as American military chaplains.

U.S. Army Muslim chaplain in custody in connection with Gitmo

The AP reports that the American military has taken one of its own chaplains -- a Muslim -- into custody in connection with an investigation involving the men detained at Guantanamo Bay. Very few details are available at this time. No charges appear to have been filed, nor has there been an Art. 32 hearing, analogous to a grand jury hearing. It's not clear whether the military plans to press charges, or if federal prosecutors will do so, or even if Captain Yee is suspected of things he could be charged with.
Captain Crosson said Captain Yee was taken into custody at a naval station in Jacksonville. But he said he did not know where the chaplain was being held.

A senior law enforcement official, said that F.B.I. agents had confiscated classified documents Captain Yee was carrying and questioned him before he was handed over to the military.

Captain Yee is a Muslim chaplain who was assigned to the naval base at Guantanamo Bay in November 2002 as the Islamic adviser to the Joint Task Force commander, Captain Crosson said.

The base, in eastern Cuba, is overseen by the Southern Command, which is based in Miami. About 650 men from 43 countries are being held there, all of them accused of having links to the Qaeda terrorist network or Afghanistan's fallen Taliban regime.

Captain Yee, a Chinese-American who graduated from West Point in 1990, converted to Islam in college and became a chaplain after spending several years in the Army.
Wow... this has the potential to be a really big story. My first reaction is that "first reports are always wrong." I really need to see more information -- from official sources -- to understand what's going on here. If I had to guess, it would be that Captain Yee committed some infraction such as failing to properly secure classified documents, and that investigators picked him up for that fact alone. I'm very skeptical that this man -- a West Point grad and experienced Army officer -- would actually do what's implied here: give documents to a member of Al Qaeda interned at Gitmo. But anything's possible.

Update: Unfortunately, it looks like my earlier skepticism may have been misplaced. According to CNN, Captain Yee is alleged to have done a lot more than misplacing classified documents. If these allegations are true, he may indeed me guilty of treason or espionage -- depending on how you construe the elements of those crimes in the context of our undeclared war on terrorism.
. . . the documents included "diagrams of the cells and the facilities at Guantanamo [Bay, Cuba]" where about 600 al Qaeda and other "enemy combatants" are being held by the military.

Yee also was carrying lists of detainees being held there as well as lists of their interrogators, the source said.

In addition to the classified documents, Yee is "believed to have ties to [radical Muslims in the U.S.] that are now under investigation," the source said. He said he could not elaborate on the basis for that belief.

Although no charges have been filed, the U.S. military is "investigating whether [Yee] may have [been involved in] espionage or treason," the official said.

Lawsuit filed to challenge military recruiting at law schools

On the day the Supreme Court decided Lawrence v. Texas, I predicted that we would see a wave of challenges to the law precluding gays from openly serving in the military. The first of these appeared in U.S. District Court a few months ago, and was a direct challenge to one soldier's discharge. The second appeared yesterday, in a federal court in Newark, where a coalition of law professors has sued the Defense Department over its practice of recruiting on law school campuses. Specifically, the group argues that their First Amendment rights are being unduly burdened by the law which threatens schools with a withdrawal of federal funding if they refuse access to the military.
The suit says that every accredited American law school has adopted policies that bar discrimination on the basis of sexual orientation, and that the schools have sought to apply these policies without making any exception for what the suit describes as "the military and its discriminatory policy regarding sexual orientation."

Some law schools barred military recruiters from entering their campuses. Others allowed them entry while arranging visits under conditions that set them apart from recruiters representing law firms and corporations whose practices the law schools do not consider discriminatory.

In 1995, Congress passed the Solomon amendment, named for its sponsor, Representative Gerald B. H. Solomon of New York, barring disbursement of money from the Departments of Defense, Transportation, Health and Human Services, Education and some other federal agencies to any college or university that obstructed campus recruiting by the military.

The suit filed yesterday argues that the Solomon amendment violates law schools' First Amendment rights to academic freedom.

"The plaintiffs are seeking to prohibit enforcement of the Solomon amendment," said Michael Chagares, chief of the civil division of the United States attorney's office in Newark. "We will contend that the Solomon amendment is constitutional and will seek to prohibit any limitation on its enforcement."
Analysis: I'm writing a longer piece on this, so I will reserve the bulk of my analysis for that piece. However, I think this lawsuit will fail because the Solomon Amendment itself and the law against gays in the military are two separate legal things. In theory, the Solomon Amendment would still exist without the policy on gays in the ranks, to combat general animus against the military on campuses. If some university kicked the military off because it just didn't like the service, or because it was opposed to the war in Iraq, the Solomon Amendment would still be triggered. Moreover, as a general rule, Congress can condition the funding it gives out for various purposes, even if those conditions place a burden on speech.

Ultimately, I think this case will lose. I started reporting on a story about this shortly after the Lawrence decision, and I talked with three universities' general counsel about the issue. Their feeling was that a challenge to the Solomon Amendment would fail because it would be impossible to argue that Lawrence somehow changed the constitutionality of the law -- they're separate issues. Also, the universities have mostly achieved an uneasy peace with respect to military recruiting on campus, and they're unwilling to disturb that. Finally, almost everyone recognizes the value of military recruiting for students -- particularly those with financial need (like me) who can use an ROTC scholarship or GI Bill funding to further their educational aspirations. If this lawsuit is successful, it will hurt students like me who took advantage of one of the greatest opportunities in American society: military service.
JetBlue criticized for giving passenger information to defense contractor

The New York Times reports this morning that JetBlue, one of America's newest and most successful airlines, is in hot water for giving information about its passengers to a defense contractor working on a security system. The system itself is probably classified, and details are short in the story. But it appears to be a base-defense system, not an aviation security system, made by Torch Concepts. My best guess is that this information was used to run a program that looked for non-obvious relationships between passengers based on their names, addresses and social security numbers, among other data. Understandably, a number of passengers and civil liberties groups are upset by the disclosure.
JetBlue, a three-year-old discount airline, sent an e-mail message to passengers this week, conceding that it had made a mistake in providing the records last year to Torch Concepts, an Army contractor in Huntsville, Ala., for a research project on "airline passenger risk assessment."

"This was a mistake on our part and I know you and many of our customers feel betrayed by it," said David Neeleman, JetBlue's chief executive, in an e-mail message that the airline, based in New York, said was sent to about 150 passengers who had written in so far to complain.

Mr. Neeleman, the founder of JetBlue, which has been a rare success in the airline industry and has prospered because of its reputation for low fares and consumer friendliness, insisted that none of the passenger information was shared with the government. "The sole set of data in Torch's possession has been destroyed," he wrote. "No government agency ever had access to it."

Privacy rights groups expressed astonishment that JetBlue had shared so much passenger information with a contractor, describing the privacy breach as among the most serious reported by any American company in recent years.

JetBlue's announcement comes at a time when many civil liberties groups are warning that privacy rights are becoming victims of the government's struggle against terrorism and the desire of law enforcement and intelligence agencies for quick access to customer information that has traditionally been closely held by corporations.

The airline said it had provided Torch Concepts with records on about five million individual itineraries, reflecting the travels of about 1.1 million passengers in 2001 and 2002. The records, it said, would have included the passengers' names, addresses and phone numbers but not credit card numbers or government identification numbers commonly collected from travelers like passport numbers.

A lawyer for Torch Concepts, Richard Marsden, said that the passenger records provided by JetBlue were destroyed by the contractor earlier this week after the existence of the project was reported by Wired News, a technology-news Web site. "It's all been destroyed in the last 24 hours," he said in a telephone interview.
Analysis: It would be all too easy to lump this in with the other actions of the Bush Administration in the war on terrorism, and to say that this is just one more example of our civil liberties being abused. Unfortunately, I don't think that's what's going on here. I think this is something far more subtle, and conversely, something far less threatening to our civil liberties. Moreover, it's happening every day. If you don't think that your credit card company, your bank, your lenders, and others are using data about you to make risk decisions, you're wrong. They're sharing information all the time, often without your explicit knowledge. That itself may be a bad thing. But I think it's unfair to single JetBlue out for something that's common industry practice.

I think it's a little odd that this information would be used for a base defense system instead of an aviation security experiment. But the value of the research appears to be quite high, if you take the findings of Torch Concepts at face value. And in the larger context of the war on terrorism, I think studies like this need to be conducted, if we are to learn how to look for non-obvious relationships in large patterns of data. Programs like Total Information Awareness and CAPPS (Computer Assisted Passenger Prescreening System) do require us to give information to private and public officials who will then use that information. But, these programs may make us physically more secure if they can find the relevant pieces of information to help intelligence analysts put together the dots to find terrorists. I, for one, am willing to make the trade of information security for physical security, particularly when I've already given this data to my credit card companies and the government.

Congratulations to Mickey Kaus for this flattering profile in today's Los Angeles Times. The writer liked KausFiles so much, he even imitated Mickey's style for the article, writing in short punchy paragraphs with bolded headlines.

Query: What is it about the Westside of Los Angeles that spawns so many high-profile bloggers? Mickey, Virginia Postrel, Mark Kleiman, ArmedLiberal (Winds of Change), Eugene Volokh, this author, and others all live or work in this part of L.A. My knee-jerk answer is that it's the heart of liberal intelligentsia on the West Coast, but that can't be the answer because we're not all liberals.

Which came first -- the expert or the blog?

Congratulations to bloggers Eugene Volokh and Howard Bashman for their appearances in today's lead New York Times article titled "Experts Say Court Panel Is Less Likely to Delay California Vote". Of course, both are brilliant legal thinkers in their own right, and their expertise came long before their weblogs. Eugene is one of America's leading First Amendment law scholars, and he's uniquely qualified to comment on the recall as a Constitutional Law professor and someone who's clerked for Judge Alex Kozinski (on the 11-judge panel) and Justice Sandra Day O'Connor (who may ultimately decide the case). Howard is also uniquely qualified, as an experienced appellate lawyer who's also clerked for the 3rd Circuit. So at least in these two bloggers' case, the expert came before the weblog.

Friday, September 19, 2003

A few good books

Over the next several months, we will start to see a stunning array of books arrive on the shelves from journalists who were embedded with units in the second Gulf War. This was a foreseeable result of putting so many ambitious reporters in the thick of the action with an exclusive view of their part of the war. One of the first books already looks like something I'm going to read: The March Up: Taking Baghdad With The 1st Marine Division, by F.J. "Bing" West and Ray L. Smith. The Washington Post's review of the book was enough to pique my interest:
Sixteen years after an infamous televised exchange between Peter Jennings and Mike Wallace over whether or not it would be acceptable for a journalist to warn soldiers from his own country about an imminent ambush, Smith and West were simply and flatly covering their own guys: They were Marines, reporting on Marines. The result doesn't look the way journalism tends to look. Having extensive combat experience, Smith and West -- but especially Smith -- didn't hesitate to shout orders and give tactical advice to the Marines they were covering. At one point, Smith intervened in an argument between officers who were planning a defensive position, offering a calming gesture so they could focus and continue. Smith also offered to stand watch in a combat zone so the Marines could get some sleep, an exchange that opens the book. After the pair spotted a heavy weapon in a village during a flyover in a military helicopter, Smith carried back the coordinates to a Marine commander so the weapon could be destroyed. And so on: There apparently is, in fact, no such thing as a former Marine.

And yet for all the transparent lack of objectivity, for all their refusals to strike a journalist's blank face and neutral pose, Smith and West deliver a balanced and unblinking account that will certainly become one of the standard texts on the second Gulf War. They approached the Marines with clear and open respect but didn't hesitate to write critically; they saw combat and the terrain over which it occurs with trained and experienced eyes, and wrote sharply observed accounts of what they saw. They were not "objective" -- merely knowledgeable, intellectually curious and rigorously honest.

Being accepted on the battlefield as Marines among Marines, Smith and West were given rare access -- and a great deal of very direct help -- in observing different units and battles. They borrowed military radios and night-vision goggles, were simply given an SUV captured from an Iraqi general, and were granted armed escorts when they needed to travel through dangerous terrain. As a result, this book is a sort of microscope-telescope hybrid, moving seamlessly through many levels: Here is the division commander's view of the fight, the regiment commander's view, the battalion commander's view, the company commander's view -- and the corporal's view, slugging it out on the ground at the head of a fire team.
In addition to this book, look for one from Army Times reporter Sean Naylor on Operation Anaconda, which should come out later this year. Sean won a major journalism award for his reporting from Afghanistan, and I imagine his book will be even better. Also look for something from Evan Wright, who traveled with a Marine Corps reconnaissance platoon and wrote an outstanding 3-part series on the ordeal for Rolling Stone.

Signs of a thaw between Washington and the world

German Chancellor Gerhard Schroder has an op-ed in today's New York Times which effectively reverses his country's opposition to American operations in Iraq -- and pledges German support for the nation-building mission there. The move comes in anticipation of a UN General Assembly meeting in New York, where Schroder is expected to meet with President Bush. One official described the warmer statements from Washington and Berlin towards each other as a "mating dance" in anticipation of that meeting. Still, the promise of German troops and support for the Iraq mission is incredible.
It is true that Germany and the United States disagreed on how best to deal with Saddam Hussein's regime. There is no point in continuing this debate. We should now look toward the future. We must work together to win the peace. The United Nations must play a central role. The international community has a key interest in ensuring that stability and democracy are established as quickly as possible in Iraq. The international mission needs greater legitimacy in order to accelerate the process leading to a government acting on its own authority in Iraq.

In addition to its current military involvement in Afghanistan, the Balkans and elsewhere, Germany is willing to provide humanitarian aid, to assist in the civilian and economic reconstruction of Iraq and to train Iraqi security forces.

When we gather in New York next week for the United Nations General Assembly, we will underline that Germany and the United States are linked by a profound friendship based on common experiences and values. For Germans, the 2003 general assembly is very special. It was exactly 30 years ago that Germany was admitted to the United Nations, a milestone in our postwar history. Back then, Germans were still forced to live in two states, divided by a wall and a dangerous border. Today, Germany is united.

We Germans will not forget how the United States helped and supported us in rebuilding and reuniting our country. That Germany is living today in a peaceful, prosperous and secure Europe is thanks in no small measure to America's friendship, farsightedness and political determination.
Analysis: Clearly, Chancellor Schroder is pulling President Bush's schnitzel out of the fire. He's also making a major power play on the world stage, and I think he's going to be successful in establishing himself as a pragmatist who's willing to put differences aside to do the right thing. On the tactical and operational level, this contribution will make a huge difference. America's own Army (as well as the Congressional Budget Office and General Accounting Office) admits that it cannot sustain the mission in Iraq beyond 2004 without external support. Generals from Barry McCaffrey to Wes Clark have all said that doing so would break the force, and create another hollow Army like that of the post-Vietnam 1970s. In essence, German troops are coming to save the American army too. But that's what allies are for, and we should be grateful.

(One footnote: European armies tend to be very good at this kind of thing, and we should welcome NATO forces whenever we have a peacekeeping/nation-building mission)

Across town on another op-ed page, Secretary of State Colin Powell writes in the Wall Street Journal that we still stay in Iraq as long as it takes to get the job done. Secretary Powell's essay comes on the heels of a visit he made to Iraq, and of all the President's men, I think he has the most credibility to make the arguments he does. This is exactly the argument the White House needs to make on Iraq, and I think that Secretary Powell is the right man to make this case to the American people and the world.
Iraq has come very far, but serious problems remain, starting with security. American commanders and troops told me of the many threats they face--from leftover loyalists who want to return Iraq to the dark days of Saddam, from criminals who were set loose on Iraqi society when Saddam emptied the jails and, increasingly, from outside terrorists who have come to Iraq to open a new front in their campaign against the civilized world. But our commanders also briefed me on their plan for meeting these security threats, and it is a good one.

We also need to complete the renewal of Iraq's electrical grid, its water treatment facilities and its other infrastructure, which were run down and destroyed during the years of Saddam's misrule. Here, too, we are making progress. Electric generation now averages 75% of prewar levels, and that figure is rising. Telephone service is being restored to hundreds of thousands of customers. Dilapidated water and sewage treatment facilities are being modernized. But it will take time and money to finish the job.

Indeed, that's Iraq in a nutshell. With our support, the Iraqis have made great progress. But it will take time and money to finish the job. President Bush has asked Congress for $20 billion to help rebuild Iraq's infrastructure. Next month, the international community will meet in Madrid to pledge additional assistance for Iraqi reconstruction. With these funds, and our continued help, I know the Iraqis will take great strides in rebuilding their battered country.

How long will we stay in Iraq? We will stay as long as it takes to turn full responsibility for governing Iraq over to a capable and democratically elected Iraqi administration. Only a government elected under a democratic constitution can take full responsibility and enjoy full legitimacy in the eyes of the Iraqi people and the world.

Thursday, September 18, 2003

Can you hear me now?

It's not just a bad cell phone commercial anymore -- it's the mantra of the Coalition Provisional Authority in Iraq under L. Paul Bremer III, according to Fred Kaplan at Slate. The inability to communicate, caused by problems with rebuilding the phone infrastructure and building the cell phone infrastructure, has American officials in Baghdad at their wits' end. On top of the normal problems you'd expect with this effort, add in some serious disconnects with the way the contracts were awarded, including separate contracts for a Coalition Provisional Authority system and an Army system -- that don't talk to each other. In the end, you have a recipe for pure chaos, as Mr. Kaplan aptly points out.
According to a Defense Department official, if someone working for the U.S. occupation authority needed to talk with a battalion commander, there was no way to make direct contact. He or she had to call a desk officer back in the Pentagon, who would jot down the message and call the commander himself. If the commander wanted to reply to the message, the same desk officer would jot down the response and call back the occupation authority.

This, some officers say, is why the U.S. authorities in Baghdad so often look like they don't know what they're doing—because they don't. Many of them are smart, talented, and eager. But they can't talk with the Army about security, they can't talk with Iraqi specialists about civil needs—in short, they can't find out what they need to find out—so, for far too much of their time, they sit, paralyzed and helpless.

The blame here cannot be laid on some interagency squabble between, say, the State Department and the Pentagon. Keep in mind: Bremer's office is a division of the Pentagon; he reports to Donald Rumsfeld. No, this particular foul-up falls in the same category of neglect as failing to send in military police, failing to secure power stations, failing to imagine that things might not go as planned.
Analysis: There are so many ways to frame this story; I'll just pick two. Wouldn't you think that communications would be a part of the plan for post-war Iraq? It's certainly a part of any war plan. Communications gets its own annex in an operations plan by Army doctrine, and every major staff from battalion to CENTCOM has a special section devoted to communications. When I deployed, our signal officers always had a plan for acquiring commercial cell phones, because they provided a convenient and useful non-secure mode of commo on the ground. I'm shocked we didn't have a good plan to do this for Iraq. So as Mr. Kaplan says, we clearly had a planning breakdown here -- just as we had a number of other planning breakdowns in Iraq.

There's another story here though. America's military has run on a peacetime budget since the end of the Cold War, with some minor hiccups for the Gulf War and supplemental funding that went to specific operations like Bosnia and Kosovo. Procurement budgets have been cut; R&D; budgets have been cut; institutional bases have been cut -- nearly everything up to and including the fighting force has been trimmed. In peacetime, that's okay. You can manage a peacetime Army by the eaches, budgeting money and spare parts for each company-sized unit in order to keep the entire Army in the black. I clearly remember trying to buy spare tires for my HMMWVs as a young MP platoon leader and being told the money wasn't in the budget -- we'd just have to requisition them as we blew them.

War is different. You need excess parts at the lower levels of command to absorb the unexpected things that happen to equipment. Moreover, you can't allocate usage to vehicles and equipment the way you can in peacetime. In peacetime, a Bradley Fighting Vehicle is allocated 800 miles of driving per year -- to include all ranges, training exercises, and motor pool driving. That figure is chosen because of the cost associated with each mile driven, which translates into spare parts the Army must buy for every mile driven. The Army has Y number of Bradleys, and it can only afford to pay for the parts that 800 miles x Y Bradleys equals. Our Bradleys in Iraq have driven thousands of miles, literally ripping the Army's cost projections to shreds along with their tracks which now need replacement in record numbers. And that costs money. A lot of money.

Unfortunately, our defense industry has consolidated and reorganized during the last decade since the end of the Cold War. It can't efficiently rise to the occasion to produce large quantities of Bradley tracks in a hurry -- or HMMWV tires, or BA-5590 batteries, or anything else that the military needs quickly for Iraq. The defense industry can produce these things with time, and it can create new production lines, but it will cost a lot to do so. (The Economist had a great survey on the defence industry a few months ago, but I can't remember the exact cite) A major portion of the President's $87 billion funding request is set aside to pay for current operations needs like these. The Army Materiel Command is flat broke -- it can't come up with any more parts, or any more spares, to keep the Army in Iraq going. Any surplus capacity that remained in the force has been used up in Iraq.

So what does this have to do with cell phones? Not much. But there is a myth out there that America's military has everything it needs; that it operates with state-of-the-art equipment in every way; that it is overfunded in some way. Certainly, some elements (e.g. Special Forces) have the latest and coolest gadgets -- and they should. But the average unit in the active Army does more with less every day, and they don't get what they need when they need it until it's often too late. The reserves and National Guard do their jobs with even less. (My National Guard unit had FM communications systems that were older than me, and could not talk to their active duty counterparts.)

When the FY2005 National Defense Authorization Act comes to Congress, I think it's high time we asked tough questions about where the Pentagon is putting its money. Do we really need to spend all this money on future transformation right now, with so much of our force stuck in Iraq? Shouldn't we put more money into current operations, considering that we already have a 1-generation technology edge on our allies (e.g. Britain), let alone our enemies? $400 billion is a lot of money for defense, but it goes quickly when you spend $10 billion here and there for big programs like missile defense. I think we ought to spend more on our soldiers, sergeants and lieutenants, where the rubber meets the road.

DOJ reveals number of times it's used Sec. 215 of the Patriot Act: 0

In what must be a stunning blow to the ACLU's publicity campaign against the USA Patriot Act, the Washington Post reported today that Sec. 215 of the Act has been used 0 times to obtain an order to search through "quote". This section of the act, which was signed into law on Oct. 26, 2001, has become the focal point of criticism from civil liberties advocates who say the Bush Administration has gone too far in pursuing security at the expense of liberty. The section has even provoked a strong response from America's librarians, who have gone so far as to destroy library records lest they fall into the Justice Department's hands.
"The number of times [the provision] has been used to date is zero," Ashcroft said in the memo, which was obtained by The Washington Post.

The disclosure is the latest volley in an escalating war of words between Ashcroft and his critics, which include civil liberties groups and some Democratic presidential candidates, who have condemned the Patriot Act as an attack on individual rights. Ashcroft is in the midst of a cross-country speaking tour aimed at shoring up support for the law, which has been the focus of more than 160 protest resolutions across the country.

Section 215 of the Patriot Act, a law approved six weeks after the Sept. 11, 2001, attacks, expands the government's power to obtain records from a wide range of businesses as part of a counterterrorism investigation, without notifying the subjects of the probe. The potential use of the provision in libraries has generated some of the strongest objections to the law.

In reversing his position, Ashcroft told Mueller that the value of disclosing the information outweighs the potential harm to national security. Justice officials have long resisted releasing the information, saying the threat of the provision's use poses a deterrent to potential terrorists.

"To date we have not been able to counter the troubling amount of public distortion and misinformation in connection with Section 215," Ashcroft wrote. "Consequently, I have determined that it is in the public interest and the best interest of law enforcement to declassify this information."

Ashcroft's disclosure does not address how investigators have used other parts of the sprawling Patriot legislation. Justice officials have indicated in previous responses to Congress that top-secret National Security Letters used by the FBI are a "more appropriate tool" for obtaining business records in many cases. Scores of such letters have been used since the Sept. 11 attacks, sources have said.
Analysis: First, let me state my skepticism up front. This may be a "leaked memo" in the great tradition of leaked Washington memoranda. The Justice Department is waging a campaign now to bolster the credibility of the Patriot Act, complete with a roadshow by AG John Ashcroft. It's possible -- even probable -- that this memo was leaked by DOJ in order to shape the debate on the issue. I don't think that DOJ would actually fabricate such a memo, but without reading it to evaluate its precise terms, I can't make a good evaluation of its authenticity, veracity, or credibility.

Second, the AG acknowledges that "other tools" have been used in the fight against terrorism, and that there has been no real need for the use of Sec. 215. Some of those other tools, such as the use of "enemy combatant" status in plea bargain negotiations, are indeed heavy-handed. I think there remains some legitimate room for criticism of the Justice Department on these issues.

That said, this is a major blow for the ACLU's campaign if it's true. Sec. 215 was written with broad language, and it does give the Justice Department a lot of power. The ACLU and others have played on Americans' fear that this power might be abused by prosecutors with ulterior motives. If it's true that this power has not been used, let alone abused, then this may reassure the American public. Some Americans may even change their opinion of the Bush Administration on the issue of civil liberties, and once again trust the Justice Department on these issues.

One last note: If nothing else, this shows the value of open discussion of these issues for both sides. The Justice Department gains from full disclosure here because the disclosure of Sec. 215 order statistics shows that it has not abused this power. The public gains by having this knowledge of precisely what its government is doing with respect to its Constitutional rights. Even the ACLU gains, by winning a larger battle over public access to information.

Wednesday, September 17, 2003

Senior military officers push for withdrawal from Balkans

Does it make sense to take soldiers from Bosnia and Kosovo for Iraq?

The Financial Times of London reports today that a group of American military officers has made a concerted effort within the Pentagon to recommend an American exit from Bosnia and Kosovo. The move would free up some American combat power -- as well as "nation building" units like MPs and Civil Affairs -- for deployment to Iraq. But, FT reports that the move has run into tough opposition from those who see the Balkans as an American success story.
"The DoD [Department of Defense] wants out," said one former top Pentagon official. "It's driven by the joint staff and the army."

Although the army has made similar arguments in the past, officers are making headway. According to a senior Bush administration official, the current debate began as part of a thorough review of all US commitments abroad, which has gained more urgency as it became clear more than 100,000 US troops would remain in Iraq indefinitely.

"The Balkans have always been essentially a European challenge more than an American one," the administration official said. "Much of Europe seems bound and determined to leave Iraq as primarily an American challenge. Perhaps, therefore, a more clear-cut division of labour is in order."

A Pentagon spokesman declined to comment. But sources said opposition from some Pentagon civilians, as well as state department officials, centres on the diplomatic impact of withdrawing, as well as whether European allies - particularly the French and Germans - can successfully take over operations.
Analysis: There are a lot of interwoven issues here, and I'll address just a few. First, the number of American troops is a finite number, and the deployment game is a zero-sum game where deployments to one place take away from the troops available to deploy somewhere else. That said, the Balkans missions do not require as much force structure as they once did, and the withdrawal from this mission will have a neglible impact on the forces available for Iraq -- even including MPs and Civil Affairs units. The Army could get a lot more out of streamlining its training and doctrine command.

Whatever gains that may be gotten from this proposal will be vastly outweighed by the political consequences of an American withdrawal from the Balkans. Europe -- and the world -- sees our intervention there as a success story; a case of American might being used for right. If we think we have diplomatic issues now with Europe, just wait 'til we pull a stunt like this. It would be short-sighted in the extreme.

Finally, let's not forget that one major sponsor of partisan guerilla warfare in the Balkans was Al Qaeda. Let's not forget that fundamentalist Muslim guerillas used Bosnia and Kosovo as another battlefield for their jihad in the 1990s, along with Chechnya, Somalia, Sudan, and Afghanistan. To this day, the financial webs of Al Qaeda continue to include parts of the Balkans, and the channels for the movement of men, materiel and money continue to run through the Balkans. If we withdraw from the Balkans, we do so at our own peril.

DARPA faces the Congressional budget axe

After suffering the slings and arrows of Congressional oversight, the Defense Advanced Research Projects Agency (DARPA) appears to be headed for fiscal purgatory, according to Noah Shachtman at DefenseTech, and also in Wired News. Noah reports that the Senate's version of the Defense Authorization Act has serious cuts in store for DARPA, beyond even what was expected.
Some of the cuts to the Defense Advanced Research Projects Agency were expected: Lawmakers have been trying for the better part of a year to excise the notoriously far-reaching Terrorism Information Awareness database program.

But others seem to have come out of regulatory left field. Widely hailed research into using the brain to control robotic limbs, and training the mind to function on little or no sleep, will come to an end if the Senate's version of the Defense Department Appropriations bill becomes law.
Noah quotes from a source with the Federation of American Scientists that DARPA may be paying the price for its advocacy of programs like Total Information Awareness. I'm sure that's the case. But we all may pay the price if DARPA's budget is slashed. The overwhelming majority of DARPA projects go nowhere -- but they do stimulate research in basic science and applied science areas that would otherwise not be funded. To some extent, we all benefit from this kind of scientific research, just as we benefit from basic science research done on the MIT or Berkeley campuses. For decades, DARPA has been one of the most vibrant federal agencies in existence with respect to innovation and out-of-the-box thinking. It has also spurred development in universities and the private sector through its creative ideas and funding grants. We will all suffer if this agency takes a big hit.

Monday, September 15, 2003

The Citizen Soldier's Burden

Today's New York Times has an important story about the sacrifice being made by today's Army reservists in the war on terrorism. For some, that sacrifice has gotten to be too much, and they are contemplating the decision to leave the military altogether after their current mobilization ends.
. . . since the 9/11 attacks, Mr. Gorski, a staff sergeant with the 870th Military Police Company of the California National Guard, has spent 16 months away from home, first at an Army base in Tacoma, Wash., and most recently in the southern Iraqi city of Karbala. He is likely to spend eight more months in Iraq, and he has decided to leave the National Guard as soon as he can.

"It's just like being on active duty," he said in a telephone interview from Karbala, where 125 members of his company are stationed. "And there's a reason you get out of active duty. At the same time, you want to stay because of patriotism, so you join the National Guard or the reserves. All the guys are prepared for one deployment, especially in the wake of Sept. 11. But we've basically returned to active duty, and that's not what we're in for. It's too much to ask."

It is attitudes like Mr. Gorski's that have military officials deeply worried about an exodus from the state-based National Guards and the reserves of the nation's armed forces. Since 9/11, hundreds of thousands of citizen soldiers have been mobilized at a level thought to be the highest since World War II.

Those concerns grew last week when the Army announced that about 20,000 reservists and National Guard troops stationed in Iraq and Kuwait would likely have to serve a full year from the time they landed in those countries, extending their tours by several months.

"It's different from Desert Storm," said Maj. Gen. Paul D. Monroe Jr., the adjutant general, or commander, of the California National Guard, which has some 1,500 troops in Iraq. "Nobody was gone a year. Everyone went together and came home together. Now they have to think if they stay in, how many more times will they be mobilized? That's paramount on their minds, and that's never been paramount on their minds."

General Monroe, who was in Iraq over the weekend to see his troops there for the first time and spoke by telephone, added, "When I became adjutant general, I thought my biggest problem was going to be an earthquake. Nobody envisioned this."
Analysis: Having recently served in the California Army National Guard and the U.S. Army Reserve, I can testify to this problem from first-hand experience. Mobilizations are not just decimating (reducing by 10%) the personnel strength of these units -- these mobilizations are rendering units absolutely combat ineffective. One battalion I'm familiar with mobilized in October 2001 for a one-year homeland security mission. It returned in October 2002, only to lose more than half its personnel who refused to reenlist or even attend drills anymore. The only soldiers who remain in the reserves tend to fall into three categories:

(1) Soldiers who are so close to retirement that they have too much vested to get out. This tends to include senior sergeants and officers in the rank of Major and above;
(2) Soldiers who work in the civilian world for the government, and are relatively immune from the civilian-job consequences of back-to-back mobilizations;
(3) Soldiers who just joined and have yet to receive the educational benefits or other benefits they joined the military for, or cannot leave because they are still serving their initial enlistment.

Those three groups include roughly 30-40% of the reserve force. The rest will probably decide to get out after their current mobilization ends, or when their current enlistment ends. This portends a crisis of readiness for America's reserves, particularly if the war on terrorism will require their services in the near future for another conflict or another tour in Iraq. The overwhelming majority of "nation building" force structure (Civil Affairs, Military Police, Medical, Logistics, etc) resides in the reserve component. Bottom Line: If we see an exodus of reservists in the next several months, we will also see a corresponding decline in our readiness to conduct nation-building missions around the world.

Sunday, September 14, 2003

Is Secretary Rumsfeld in political trouble?

Josh Marshall has been asking this question for a while, spurred by criticisms of the Pentagon over its planning for post-war Iraq and other important matters. Privately, some friends of mine in the Pentagon and surrounding defense community have speculated as to whether he'd be asked back for a second term in the E-Ring.

Now, Tom Ricks and Vernon Loeb at the Washington Post pile on the same story, reporting that Rumsfeld's star may now be in decline. Mr. Ricks is often regarded as the dean of the Pentagon press corps, with Mr. Loeb as a senior faculty member. If they're reporting this, I think this story is a lot closer to conventional wisdom than many would think.
Having demanded full authority for overseeing the occupation and reconstruction of Iraq, elbowing the State Department aside, Rumsfeld is being blamed by many in Congress and the military establishment for the problems facing the United States, which include mounting U.S. casualties and costs exceeding $1 billion a week.

Whatever else Rumsfeld achieves at the Pentagon, the outcome of the Iraq occupation will go a long way toward determining his legacy in this, his second stint as secretary of defense. It also will affect the political fortunes of President Bush, whose reelection bid could hinge on events in Iraq.

Rumsfeld's ability to weather his largest crisis will depend to a degree on his standing with three key constituencies: the White House, Congress and the military's officer corps. How he does with them will be shaped largely by whether security improves in Iraq, according to officials in the administration, Congress and the Pentagon.

At the moment, at least, Rumsfeld's standing among all three is mixed. White House officials said that Rumsfeld retains the full confidence of the president. But after a long winning streak, the Pentagon chief has begun to lose some policy battles, most notably when Bush decided to seek a new United Nations resolution on Iraq -- a course about which Rumsfeld has expressed reservations.

Rumsfeld's relations with the military have been strained since he returned to office. This is particularly true within the Army, which felt threatened by his modernization plans before the Sept. 11 attacks and where concern runs deep about the damage the Iraq occupation could do the service in the long run.

Rumsfeld appears to be losing ground most dramatically on Capitol Hill, where even some conservative Republicans are expressing concern about his handling of Iraq. "Winning the peace is a lot different than winning the war," said Sen. Lindsey O. Graham (R-S.C.), who counts himself as a strong Rumsfeld supporter but notes that not all his colleagues feel the same. "His bluntness comes across as arrogance, and he's made some enemies on Capitol Hill, probably because of style differences," said Graham, an Air Force veteran who serves on the Armed Services Committee.

Sen. John W. Warner (R-Va.), the panel's chairman, struck a decidedly cool note when asked how Rumsfeld is doing. "Understandably we have some differences," he said Friday in a written response. "However, I consistently work with Secretary Rumsfeld to support the president and the men and women of the armed forces, and have a high regard for his integrity and forcefulness."
Analysis: At the very least, one has to wonder about the SecDef's continued viability in light of concerns over Iraq. As early as May, I could read the tea leaves that we didn't have the requisite plan or resources in place to do the job we needed to. Had the SecDef chosen a different style of management, this may have been the fault of planners at the lower level, perhaps at CENTCOM. But the war plan for Iraq -- and its post-war progeny -- clearly came from the SecDef's planning cell and left the Pentagon with his personal imprimatur. The logical consequence of that fact is that the Secretary should bear the responsibility for any problems in the plan.

All plans change when they're executed, but this one was fatally flawed from the start for at least four reasons:
(1) It explicitly adopted assumptions that were incredibly optimistic about the way the Iraqi people would behave after "liberation" from the Hussein regime;
(2) The plan did not allocate any resources for the contingency that those assumptions may prove to be faulty, something the CIA had been advising the SecDef for the months leading up to the war;
(3) The SecDef's plan did not change enough to reflect the deletion of Turkey as a jumping-off point for the land campaign, and it did not include a way to effectively pacify the northern part of the country and the approach routes to Baghdad after the war. Had we gone in from Turkey, the 4th Infantry Division would have steamrolled right through the "Sunni Triangle" where we're having all these problems now. That change was never fully incorporated into the plan.
(4) The SecDef's campaign plan did not anticipate rapid success as well as it should have, and this caused a gap between the date of liberation and the date when the post-war plan was ready to be executed.

There were other flaws in the plan, but those flaws were generally corrected by outstanding execution on the ground by American men and women in uniform. These flaws could not be so easily corrected, because they resulted in political decisions (e.g. how many reservists to mobilize) that could not be fixed at the V Corps or CENTCOM level. Only the President and SecDef can make those determinations, and their plan was flawed from the start.

Does this rise to the level of resignation for the SecDef? I'm not smart enough to guess that, nor am I privy to the Washington beltway buzz on this issue to be able to speculate on what movers and shakers thought. But I do think he's becoming a political liability for the White House, just as the Attorney General has become. In 2002, the average American associated the SecDef with forthright press conferences about our progress in the war on terrorism. Now, I think the average American associates Secretary Rumsfeld with continuing carnage in Iraq.

A war on terrorism or a war on civil liberties?
Some question U.S. tactics in the law enforcement part of the fight against terrorism

Sunday's Los Angeles Times has an interesting story on its front page about the Holy Land Foundation, which has been effectively shut down by the State, Treasury and Justice Departments as an entity that provides financial support to groups designated as foreign terrorist organizations.
The foundation's bank accounts are frozen by government edict. Its possessions, from computers to potted plants, have been locked away in government storerooms for nearly two years. The charity's sole activity is a lawsuit aimed at recovering $5 million in assets frozen by the U.S. Treasury Department.

Federal judges have repeatedly upheld the government's authority to shut down Holy Land because of its suspected ties to the Palestinian militant group Hamas. At the same time, the Justice Department is targeting the charity in a criminal investigation that accelerated last month with a round of subpoenas ordering several former employees to appear before a Dallas grand jury.

"Every day," said Shukri Abu Baker, Holy Land's Palestinian American director, "I wake up thinking: 'Is this the day they will come to handcuff me?' "

Holy Land's public transformation from almsgiver to pariah reveals a charity whose deeds were blurred by associations with suspected militants.

Wracked by a decade of internal debate over how to deal with the charity, the U.S. government veered from inaction to crackdown. There have also been missteps. The Times has learned that a secret FBI application for surveillance connected to the Holy Land case was flawed and could prompt a new legal challenge.

The government's stance against Holy Land reflects the official view that Hamas operations inside the United States require the same level of scrutiny as Al Qaeda, even though the Palestinian faction has not been known to target American citizens. Hamas cultivates Palestinian popular support and deflects international criticism by blending welfare with violence — sending bomb-laden recruits against Israeli civilian targets while showering social aid on destitute refugees.

Holy Land's fate has become a key test of the Bush administration's expanded view of terrorism: that charities can pose a threat by funding legitimate programs used to provide cover for militants. Officials charge that Holy Land secretly aided Hamas by funneling donations to Palestinian schools, hospitals and other aid programs tied to the resistance group — and to stipends that nurtured the families of suicide bombers.

"We don't deny that a lot of their funds went for good works," said Juan C. Zarate, deputy assistant Treasury secretary for terrorism and violent crime. "But they helped an organization that had a larger agenda of fomenting terrorism."
Analysis: It's hard to know what the truth is in a situation like that of the Holy Land Foundation. On the one hand, both sides agree that Hamas provides legitimate social services for the Palestinian people. It only makes sense that moderate Arabs around the world would want to give money to that worthy cause. On the other hand, however, money is highly fungible. Giving money to Hamas is like giving money to a thug who also has a worthy family. You lose control over the money once it's given, so you don't know if it's going to buy weapons or food. And at the very least, if it goes to buy food it frees up money that may subsequently be used to buy weapons.

The key, from an American legal perspective, is to quash this kind of financial activity without restricting the rights of Americans to freely associate or express themselves as guaranteed by the First Amendment. The statute in question, 18 U.S.C. 2339b, has been attacked on the grounds that it chills speech and other forms of expression (e.g. giving money) that might be regarded as providing material support to foreign terrorist organizations. (See this lawsuit by the Center for Constitutional Rights) There is some sort of line to be drawn between what is lawful and what is not, but that line is apt to be quite fuzzy. I trust our federal courts to draw the line, but many aren't so willing.

Ultimately, our efforts to dismantle the financial networks used by terrorists is every bit as important as our effort to find their weapons of mass destruction, or their leaders. Without such financial networks, these terrorists lose their global reach. Unfortunately, this aspect of the anti-terrorism fight is in jeopardy because the administration currently lacks credibility with a large part of the American public with respect to civil liberties. Pushing forward proposals (like this one) to enlarge administrative subpoena power is a bad way to rebuild that credibility. Instead, what's needed is an accounting. The American people need to know (among other things):

(a) What's being done by law enforcement in the war on terrorism, within reasonable bounds of operational security;
(b) How new powers are being used by law enforcement. If the matters themselves are too sensitive, such as FISA warrants, then perhaps a statistical summary of FISA warrants can be released along with some general explanation;
(c) A progress report on the war on terrorism. Again, it may not be possible to produce too detailed of a report for operational security reasons. However, an candid summary that's unclassified would still be worthwhile.

As with Iraq, the American public wants and needs to know our end state with respect to the legal war on terrorism. My friends and family members are quite willing to embrace some short-term actions by law enforcement, but they are not willing to start down an increasingly steep slippery slope to which there is no end. By themselves, these actions by the Justice Department generally don't frighten my friends or family members. But in the aggregate, they do frighten many people. What's needed is some sort of end state -- a point at which there will be no more balancing of liberty against security.