Monday, October 13, 2003

AP: 1/4 of U.S. troops in Iraq lack good body armor

The Associated Press reports tonight that funding delays and other procurement problems have stalled the deployment of "Interceptor" body armor to soldiers in Iraq, leaving thousands without the critical gear. This despite after-action reviews from Afghanistan and Iraq saying this body armor saved hundreds of lives with its ballistic protection (see also this story and this story); this despite billions spent so far in the war on terrorism; this despite promises from politicians on both sides of the aisle to take care of the troops.
Delays in funding, production and shipping mean it will be December before all troops in Iraq will have the vests, which were introduced four years ago, military officials say.

Congress approved $310 million in April to buy 300,000 more of the bulletproof vests, with 30,000 destined to complete outfitting of the troops in Iraq. Of that money, however, only about $75 million has reached the Army office responsible for overseeing the vests' manufacture and distribution, said David Nelson, an official in that office.

Angry members of Congress have denounced the Pentagon. They say up to 44,000 troops lack the best vests because of the sluggish supply chain, significantly more than the Pentagon figure. Relatives of some soldiers have resorted to buying body armor in the United States and shipping it to their troops, congressional critics say.

"I got a letter from a young soldier in Baghdad saying that the men in his group were concerned that they had cheap armor that was incapable of stopping bullets. And they wondered why they could not have the best protection possible under the circumstances," said Rep. Ted Strickland, D-Ohio.

The House version of an $86.7 billion Iraq spending bill passed last week would include $251 million for body armor and for clearing unexploded munitions, although it's unclear if additional money would speed up the process at this point. President Bush's original request included no more money for body armor.
Analysis: This is a monumental logistics screwup for the Army's procurement community, the Office of the Secretary of Defense, Congress (especially the Armed Services committees), and for the White House. Unfortunately, it's hard to pin the blame on any one office, or even on any one administration, because the blame belongs to lots of people who touched this program over the last several years. The initiative to develop new body armor may have started as early as the Reagan Administration; this particular program dates back to the Clinton Administration. The earliest decisions about how many Interceptor vests to buy and when were made when President Clinton held office.

However, the current administration doesn't get off the hook that easily. When the decision was made to invade Iraq in late 2002, this shortfall could/should have been identified, and dealt with. The blame for that mistake starts with Army logisticians and runs all the way up the chain of command to the E-Ring of the Pentagon and to Congress. The job of logisticians is to anticipate requirements and move resources to the right time and place on the battlefield to influence the fight. Clearly, this requirement was not anticipated, or decisionmakers at various levels decided to ignore this requirement.

As a nation, we have let our soldiers down by sending them into harm's way without this equipment. Our soldiers can make do without a lot of creature-comforts when necessary, but this is absolutely mission-essential equipment that no soldier should have crossed the LD without. What's even worse is that the distribution of this gear has been inequitable thus far, with reservists worse off than active units, and some active units worse off than others. I've received no less than a dozen e-mails from reservists saying they were told they would get this gear only after every active-duty soldier got it. (Query: is there any legitimate distinction between an active-duty soldier and mobilized reservist when you're both deployed to a combat zone?) Many said they had already bought their own ceramic plates over the Internet with personal funds and/or unit funds, because they could/would not wait for the Army to procure this gear. I think that's despicable, and something must be done.

So what can be done? Congress typically doesn't move at the speed of light, but it can when it wants to. If Congress was willing to jump through its fourth point of contact (paratroopers know what this means) to legislate authority for the Do Not Call list, then they can also move heaven and earth to fund body armor for our soldiers. Similarly, the Pentagon could do a lot to acquire, ship and distribute this equipment once it's procured. As my old First Sergeant used to say: the maximum effective range of an excuse is 0 meters. So far, all I read in this article is a litany of excuses from offices in the Executive and Legislative branches about why this process is taking too long. Tell that to the guys in Iraq waiting for their body armor while they face Iraqi guerillas armed with AK-47s and RPGs.

Why was Gitmo so vulnerable to espionage?

Richard Serrano asks that question in today's LA Times, and answers that the Guantanamo Bay facility was not full of counter-intelligence measures to check on its people, and that it relied mainly on trust to keep everyone in line.
What has been learned is that while Camp Delta may have been secured from outside attack, its internal security system rested largely on trust — the belief that its staff, all of whom had security clearance, was loyal.

Allegations that the detained staffers appear to have developed sympathies for the prisoners also have alarmed the American Muslim community, raising fears of a backlash against Muslims serving in the military.

Heavily fortified, far from the Afghan battlefield, so remote and hard to get to that it seemed the ideal solution for holding suspected Al Qaeda and Taliban captives, Camp Delta was meant to be the most secure site for detaining combatants in America's war on terror.

Now, the Pentagon has dispatched a special task force to determine the extent of the alleged security breaches, what damage has been caused and how Camp Delta can be fixed.
* * *
Col. John J. Perrone, an Army reservist from New York who served as Camp Delta's prison warden for eight months last year, said he believed the facility was safe from an outside attack. He acknowledged that he often worried about an internal breakdown, but he said he was amazed that three staff members had been arrested.

"There are a lot of soldiers that are in and out there," he acknowledged. "You have e-mail and telephones, and there are various other methods of communication. The Internet is a great source of information."

Security clearances should be tightened and random searches conducted, Perrone said, noting that getting through the prison doors was no harder than boarding an airplane when he was at Camp Delta.
Analysis: I'm not sure you can dismiss trust and personal loyalty so easily as effective mechanisms for maintaining security. After all, that's generally what keeps every military unit functioning in combat -- trust and unit cohesion. It's also what keeps most of our government running, although we have counterintelligence systems in place to detect leaks in a lot of places. Our society is not one that watches every person, every moment, everywhere. Even at Guantanamo Bay, we have not subjected our military personnel to that kind of regimen because it runs contrary to American norms and values. Trust and personal loyalty sometimes break down, as in the three Gitmo spy cases, but they still remain pretty effective. Indeed, I would say they're more effective on the whole than building a repressive society where every move is watched.

That said, there remain glaring holes in our security at Gitmo. Trust aside, we should've been screening luggage on the way out and maintaining tigher control over classified documents. It may be the case that too much is classified at Guantanamo, thus making this latter job very hard. Regardless, physical security must be the foundation of any larger security effort at Gitmo, and physical security entails placing an absolute quarantine around this prison and around the larger base where our personnel are living. If the intelligence there is so valuable, then we ought to do what's necessary to keep it secret.

Sunday, October 12, 2003

The story of the 'Lackawanna Six'

The New York Times has an excellent story on the saga of the 'Lackawanna Six' in Sunday's paper. The case was brought against six men for providing material support to foreign terrorist organizations, including attendance at an Al Qaeda training camp in Afghanistan, among other charges. Ultimately, the six men pled guilty to various lesser offenses, in exchange for information and the government's pledge not to designate them as enemy combatants. The case has generated some amount of interest already, as a possible example of Al Qaeda "sleeper cells" in America. This article discusses that idea, but instead focuses on the ways this case has forced law enforcement officials to retool their criminal enforcement paradigm for terrorism.
. . . an examination of the case by The New York Times and the PBS documentary program "Frontline" demonstrates that behind Washington's sweeping proclamations is a more measured victory over a profoundly ambiguous threat.

After the suspects kept up a cover story about their trip for more than a year, Mr. Alwan and five other men from Lackawanna pleaded guilty to training with a terrorist organization. And investigators determined that the men had been recruited by an American Muslim with connections to the upper echelons of Al Qaeda.

But counterterrorism officials never figured out the mystery that consumed them through the long, tense, terror-obsessed summer of 2002: What, if anything, did Al Qaeda have in mind for its Lackawanna recruits? In fact, the federal prosecutor whose office won the guilty pleas, Michael A. Battle, does not call them a terrorist cell. "It's a heavy burden to prove," he said, "and I wasn't prepared to do that."

Lackawanna was the first major test of a retrofitted law enforcement establishment whose mission is less to solve terrorist crimes than to make sure they do not happen in the first place. The inside story of the case — pieced together from interviews with investigators and counterterrorism officials, as well as a review of confidential documents — reveals a government feeling its way across a fresh landscape to crush a threat it cannot quite grasp.

Peter Ahearn, head of the Buffalo F.B.I. office, described the riddle of prevention this way: "If we don't know for sure they're going to do something, or not, we need to make sure that we prevent anything they may be planning, whether or not we know or don't know about it."

The imponderability of the men from Lackawanna made them a magnet for the government's deepest suspicions and anxieties. An arsenal of new antiterrorism tools was applied to their case — enhanced surveillance, interrogation of enemy combatants and a free flow of information between criminal investigators and intelligence officers, once barred by rules devised to protect Americans from improper domestic spying.

But the men's true intentions remain locked away with them. Mr. Alwan, speaking to The Times in a rare interview of an American Al Qaeda recruit, said that the men had no plans, no hatred for America, and that when he walked away from Osama bin Laden, he left Al Qaeda behind. He explained his trip to Afghanistan as "a lot of curiosity." Yet he acknowledged lying to authorities in a failed attempt to avoid jail.

The question posed last fall by prosecutors still stands: "Why do a group of young Yemeni-Americans, born and brought up in Lackawanna, N.Y., and, in the majority of cases married with children, suddenly leave their otherwise unremarkable lives to spend six to seven weeks in a terrorist training camp, then quietly slip back into roles of middle-class Americans?"
Analysis: This is a great story, which is rich in detail. It really was a coup for the NY Times to recruit Lowell Bergman, played by Al Pacino in the movie The Insider, and Matthew Purdy is an exceptional reporter as well. Both have written a story that deserves a read from both anti-terrorism insiders and the public alike.

Terrorism will likely be an issue in the 2004 presidential election, as either a subset of national security or a major issue in its own right. I believe the Democratic candidates will soon start to use this issue in the primaries to appeal to their core constituencies -- liberal Americans who feel their civil liberties are at risk with the current administration. The Lackawanna Six case will be a major piece of that argument, just as President Bush used the Willie Horton case in 1988 to appeal to the fears of moderate and conservative voters. (In principle the two are the same; in practice the latter is inherently more dirty than the other as far as political tactics go.) In the general election, I believe this will be an issue too. The Democrats will likely use this issue as a wedge to separate moderates from the Republican Party, and I think they will be successful.

Update: I intended this last note to be controversial, and sure enough, I've gotten some e-mail. Ryan Booth thinks I'm way off the reservation with the political comparison between the Lackawanna Six case and the Willie Horton issue of 1988. Clearly, the facts are different. However, the political strategies behind each issue are similar:
- The use of an issue which appeals to fear and insecurity among voters (terrorism and violent crime). However, in the Horton instance, the argument was if you choose Gov. Dukakis, you will be less safe from criminals. In this case, the argument will be that if you choose George Bush, you will be less safe from your own government. Similar, but different.
- The use of an issue which appeals to each party's respective base, as well as moderates.
- The meta-narrative that "You can't trust this candidate on X issue" that lies behind each. In Horton's case, it was "You can't trust Mike Dukakis to be tough on crime." In this case, it will be "You can't trust John Ashcroft with your civil liberties.

So at the end of the day, the two arguments are not exactly the same. But they share some common meta-narratives and themes. At each argument's core, there is an appeal to fear.

Saturday, October 11, 2003

An $87 billion slush fund?

Fred Kaplan at Slate thinks that's the best description for the President's appropriations package for Iraq. In particular, Kaplan points out a few places where the Secretary of Defense can move money around within the $87 billion package, or even borrow from other parts of the $400 billion Pentagon budget, to pay for current operations in America's war on terrorism. The guidance in this budget document is as vague as the phrase "war on terror", thus leading Kaplan to criticize the budget sections as a slush fund.
Add them all up: $9.3 billion—11 percent of the entire, already-controversial sum (and that doesn't include the expandable loophole provided by the "not less than" clause).

There is no overlap or double-counting in this calculation. Each of these separate sections explicitly notes, "The transfer authority provided in this section is in addition to any other transfer authority available to the Department of Defense" (italics added), or words to that effect.

In the supplemental document, the Pentagon offered explanations for these loopholes. Transfer accounts are "necessary due to the dynamic nature of these operations," or "to provide the flexibility needed to allocate funding to those components that are actually incurring costs," or "to help the Department address the unpredictable scope, duration, and intensity of these military operations."

Certainly postwar Iraq and Afghanistan are a lot more unpredictable than, well, the Pentagon predicted. Much of life is unpredictable. That's why budgets have supplementals. The entire $87 billion request is officially designated "an emergency requirement." Yet much of it is broken down into specific line-items or at least general categories of spending. Is the situation really so unpredictable that more than $9 billion of that sum—and possibly much more (the "not less than" clause)—might need to be spent in ways so quickly, and so differently from what is currently imagined, that Rumsfeld must be given the authority to move it around, from one account to another, without prior congressional approval? If the circumstances do warrant it, couldn't he simply put forth another supplemental? The present supplemental didn't run into many obstacles, despite growing criticism of the whole operation; there's no reason to fear that a subsequent one would, either.

So why have three committees of Congress essentially abrogated such a sizable chunk of their oversight powers? Mainly because they wanted to. The lawmakers can play populist politics, tossing out hundreds of millions of dollars for new Iraqi hospitals, housing, garbage trucks, and business subsidies. They can thunder that their constituents—the American people—don't get federal money for such niceties, so why should Iraqis? Meanwhile, they know that Rumsfeld can use some of the slush-fund money—the "transfer funds"—to put them back in the budget, very low key, notifying the committees but not needing their permission. Responsibility is thus eluded, electoral-politics points are gained.
Right -- Congress deserves much of the blame here. It is true that the President recommended this legislation to Congress in accordance with his Art. II, Sec. 3 power to "recommend to their [Congress'] Consideration such Measures as he shall judge necessary and expedient". (Bonus fact: the President actually initiates more legislation than Congress under Art. II, Sec. 3, a development widely traced to the rise of the modern administrative state and the need for large packages of legislation to guide each executive department.) That said, Congress never leaves a piece of Presidential legislation alone, and they could easily add conditions and other requirements to these parts of the President's $87 billion package. But they haven't.

There are two reasons why not -- one legitimate, one political. Legitimately, the Pentagon needs some discretion in the way it allocates its funds. Here's a simple example why. One day, the Iraqi guerillas are attacking vehicles, so you need vehicle parts. Next month, the Iraqi guerillas start attacking base camps, so you need to buy new construction materials. If the budget were too detailed, the SecDef and his staff couldn't move that money around. This is oversimplified, but you get my point. You also have timing issues in play, where the Pentagon probably doesn't want to slow down the funding process by having to report to Congress every time it moves money around.

Secondly, this is a political punt by Congress. The members of Congress don't want to tackle the systemic issues for why such a large appropriations package is needed (e.g. the lack of good body armor for every soldier in Iraq). The members also don't want responsibility for deciding how to spend this $87 billion, either because that responsibility properly lies in the Pentagon, or because they want the freedom to attack these spending decisions down the road. And the list goes on.

Does a slush fund like this really matter? I'm not sure. Certainly, it can hide spending that the American people and its representatives might not otherwise approve of. But I would balance that oversight problem against the practical problems of vetting every expenditure with Congress -- and still having time to get the money to the right time and place on the battlefield. Congressional appropriations are a cumbersome process, and we can't have soldiers' fortunes riding on it.

Personally, I'd be much more concerned about some of the structural issues revealed in this supplemental request, like the lack of body armor, the problems with M2A2/A3 Bradley Fighting Vehicle track procurement, ammunition shortfalls, radio batteries, and other parts problems which affect the entire Army and Marine Corps right now. Put bluntly, the warehouse shelves are dry. We have used up many of our peacetime stockages of key items that soldiers need to fight in Iraq. The problem will only get worse with time. Moreover, as we force defense contractors to jumpstart production of these items, we incur significant startup costs. Frankly, I don't think that good planning was done before we crossed the LD about precisely what we'd have to buy over the long haul. I think our optimistic expectations of this occupation infected every aspect of planning -- from troop deployment orders to orders for SINCGARS radio batteries. If I were an enterprising journalist in Washington, that's the story I'd be writing right now. And if I were an enterprising Congressman, that's the issue I'd be pursuing too.

Update to note on FedEx's anti-terrorism efforts

A number of readers have written me to remind me of the police forces created during the late 19th Century within most major railroad companies. Originally, these forces were created to police the rail lines against Indian tribes, bandits, and other hazards. Today, they continue in this law enforcement role, although against other threats. Burlington Northern & Santa Fe Rail is one example of a railroad company with its own police force, and one reader writes that these police take an active role in making sure the rail lines stay safe.
Our facilities are crawling with these folks - they carry guns, have arrest power, and nationwide jurisdiction. The police forces of the various railroads cooperate with each other and law enforcement to a great extent, and could definitely provide a model as to how other types of companies could implement the same thing, though I think the railroads possess of lot of maturity in handling the power that comes with it due to their length of experience.
Railroads are just one part of America's critical infrastructure, however. The anthrax attacks showed just how vulnerable our country can be to a small strike against one aspect of its infrastructure -- in that case, the public postal system. Financial institutions, railroads, water treatment plants, power plants and distribution networks, and other parts of America's infrastructure all need to be hardened against the threat of terrorism. The paradox of anti-terrorism planning is "the more you protect the hard targets, the more vulnerable you make the soft targets." If we harden our airports and public sites against terrorism, we will simply make our private sites more attractive as targets. America depends on its infrastructure, and most of its infrastructure is private, not public. Thus, we need to encourage more companies to be proactive like the railroads and FedEx, and to think about how they can protect themselves.

Update II: Several readers were kind enough to write me about an incident in 1994 where one of FedEx's planes was hijacked and nearly crashed into its main hub in Memphis. I'm sure I read the news of this incident back then, but it had totally left my mind until now. No wonder FedEx takes anti-terrorism seriously. My real hope is that there's cross-talk between the logistics and airline people at FedEx and the law enforcement people on the Memphis FBI Joint Terrorism Task Force (JTTF). The FBI holds some of the best legal and investigative minds in the world, but they're not subject-matter experts on everything.

Friday, October 10, 2003

Group takes Gitmo appeal to the Supreme Court

A coalition of retired military officers, judges, ex-POWs, and others has filed an amicus curae brief urging the U.S. Supreme Court to hear the appeals of detainees held at Guantanamo Bay. The petition on behalf of 12 detainees was dismissed by lower courts on procedural grounds, and the group is now asking the high court to overturn that dismissal so the case can go forward on the merits.
Representing seven groups that have filed friend-of-the-court briefs on behalf of 16 detainees at the base, the former officials said the detentions of more than 650 terror suspects without access to lawyers is a mistake of law that hurts the United States' reputation and could endanger Americans elsewhere.

The detainees have sued in federal court, seeking the right to talk to lawyers and to challenge their detentions before a court, but have had their cases rejected and are now appealing to the Supreme Court.

''The perception of this case abroad -- that the power of the United States can be exercised outside the law -- will diminish our stature and repute,'' said a brief filed by 19 former diplomats. ``Our most important diplomatic asset has been this nation's values.''

They said countries from Egypt to Malaysia were now citing the Guant?namo precedent as they held suspects without trial.

In a separate brief, three retired military officers said they feared that the failure to apply the Geneva Conventions in Guant?namo is giving other nations ''an excuse'' to do the same ``and will endanger American soldiers captured in the future.''

The diplomats include two former assistant secretaries of state, William Rogers and Alexander Watson, and Allen Holmes, a former assistant secretary of defense. Among the military leaders was Rear Adm. Donald Guter, who retired last year as Navy judge advocate general. Guter said he was involved in early decisions about Guant?namo and reviving military tribunals for some suspects.

So far, federal judges have ruled that because the base, leased from Cuba, is on foreign territory, aliens held there have no access to U.S. courts to challenge their detentions. The Bush administration maintains that the detainees -- most of them captured in Afghanistan and Pakistan -- are ''unlawful combatants,'' do not deserve POW status under the Geneva Conventions and can be held indefinitely.
Also today, the New York Times reports that the Red Cross has restated its disapproval of the way America is behaving at Guantanamo. This is significant for a couple of reasons. First, the ICRC has enormous international prestige, as well as moral authority. Second, the Third Geneva Convention charges the ICRC with what amounts to the job of executor. If this body thinks our behavior at Gitmo is inconsistent with the Geneva Convention, they're probably the best ones to make that call.
Christophe Girod, the senior Red Cross official in Washington, said on Thursday in an interview at the United States Naval Base here, "One cannot keep these detainees in this pattern, this situation, indefinitely."

Mr. Girod spoke as he and a team of officials from the international organization were completing their latest inspection tour of the detention camp. Although he did not criticize any physical conditions at the camp, which houses 660 detainees, most of them captured in the Afghan conflict, he said that it was intolerable that the complex was used as "an investigation center, not a detention center."

He said the International Red Cross was making the unusual statements because of a lack of action.

United States officials have said they have begun moving to sort the detainees, choosing which to release and which to take before military tribunals on criminal charges.

Some officials, notably Defense Secretary Donald H. Rumsfeld, have said the detainees may be held until the effort against terrorism ends.

Mr. Girod said, "The open-endedness of the situation and its impact on the mental health of the population has become a major problem."
Analysis: My thoughts on this subject have not changed substantially since I wrote "Extend Geneva to Gitmo" in the Washington Times in early 2002. For principled and practical reasons, we ought to give the detainees at Gitmo the protections of the Third Geneva Convention, recognizing that those rules were written for a different paradigm of war and that we need to adjust our rules to fit the reality of today's war on terror. At the very least, we need to give these detainees Art. V tribunals to determine whether they are lawful or unlawful combatants -- and what legal process they are entitled to as a result of that decision.
In America's rush to condemn the men currently imprisoned at Guantanamo Bay, we have forgotten the reasons why we adopted the Geneva Convention in the first place.

The Geneva Convention was not intended to serve as a manual for courts martial - it was intended to make warfare more humane. Many of those reasons for its adoption now argue strongly for protecting captured Taliban and al Qaeda fighters under its provisions.

Three good reasons exist for extending the Geneva Convention to include the Taliban and al Qaeda fighters we have captured:

(1) The nature of warfare has changed a lot in 50 years; the Geneva Convention's definitions of warfare and soldiers are anachronistic. (2) The United States employs unconventional warfare and warriors itself - we ought to be concerned with their treatment if they're captured. (3) America needs to retain the moral high ground in this conflict because our global war on terrorism depends on international cooperation, which is largely based on the sympathy and approval we now enjoy among other countries.
* * *
These three reasons combine to make a very strong case for a change in U.S. policy toward the men it now holds at Guantanamo Bay. The consequence of not recognizing these men as prisoners of war will be quite severe. American unconventional warriors will pay the price in future conflicts for this decision if they are captured. And most of all, this policy jeopardizes the international cooperation we need to win this conflict.

Though the Geneva Convention does not strictly apply to these prisoners, we should extend its reach in order to retain the moral high ground and further our overall goals in the war on terrorism.
One final note: I often use the phrase "the moral high ground" and its close cousin "moral authority". I should define these terms. I use "moral high ground" to mean a political or policy position where you are doing the right thing. Not the technically legal thing, or the political expedient thing, but the morally right thing. To the extent that morality is subjective, this is vague term. However, I still feel there are right and wrong things in this world, and that most Americans can tell the difference. "Moral authority" is the political capital that accrues from doing the right thing. It's a powerful tool, and one that we can use domestically and abroad to support our war on terrorism. When you don't do the right thing, you lose moral authority. Unfortunately, I think that's where we're at with Gitmo.

Thursday, October 9, 2003

FedEx starts its own police force to fight terrorism

Today's Wall Street Journal (subscription required) carries an interesting article about FedEx's initiative to counter terrorism in its operations. Faced with the responsibility for a vast cargo airline and distribution network, FedEx really had no ability to tap into official sources for intelligence about terrorist threats or countermeasures. Partly to tap into these resources, and partly to form an investigative unit of its own, FedEx persuased the state of Tennessee to authorize a police force for the corporation. Among other things, this has enabled FedEx to become a part of the Memphis area Joint Terrorism Task Force, an interagency working group managed by the FBI.
More importantly for FedEx, having a private police force qualifies the shipping company to serve on a regional joint terrorism task force, overseen by the Federal Bureau of Investigation. The 66 task forces currently in operation across the country -- which consist of local, state and federal officers -- are entrusted with more-sensitive and specific data regarding terrorist threats than businesses usually receive. FedEx is the only major air carrier that is a task-force member.

Although the FedEx representative on the task force can't give his corporate boss inside information because it may be classified, the company still gains a great deal from its membership. That is because the FedEx representative can signal the company to take preventive actions. If the task force learns certain kinds of explosives are being used by terrorists in Asia, for instance, the representative can alert the company to install specialized explosives detectors there.

"If they feel there is a threat to a particular part of FedEx's operation, they can take steps to improve security in that area without revealing security information," says FBI agent George Bolds, who is general counsel in the bureau's Memphis, Tenn., field office, where FedEx is based.
* * *
But the new arrangement does raise complex questions that have yet to be fully resolved: Does FedEx's task-force membership give it an unfair competitive advantage? Do the FedEx cops have an obligation to alert the company's rivals to terrorist threats? If the FedEx cops find wrongdoing among FedEx's senior officials, will the police ignore it because the company pays their salaries?

Tim Edgar, general counsel for the American Civil Liberties Union, questions whether corporate cops can be trusted to act in the public interest, and argues that a watchdog agency should oversee the company's performance. "You're given all the powers of someone accountable to the public, but you're driven by the profit incentives of a private company," he says.
Maybe... but on the other hand, FedEx has a lot of stakeholders who have various degrees of power to keep the company on the right path with respect to civil liberties. From a purely economic perspective, I imagine shareholders and directors will be quite reticent to allow any abuse of this power that could lead to a lawsuit -- or worse yet, a class action suit on behalf of a large injured class. Moreover, FedEx is an extremely visible company that depends on its public image of trustworthiness for its business viability. I don't see them doing a lot to jeopardize that.

I think this is a great idea, and honestly, I wish more companies would lean forward in their foxholes like FedEx. The overwhelming majority of America's critical infrastructure resides in the private sector -- power grids, dams, transportation, rail, water supply, etc. An attack on any aspect of America's critical infrastructure would ripple through every aspect of American society, and inflict billions of dollars of damage. The FBI can't protect everything, and it should focus its resources on proactively investigating intelligence about terrorism. The firms themselves should focus on defending their assets -- which they know best -- and preparing to manage the consequences of an attack. There are legal issues inherent in giving this kind of power to private entities, but I think the benefits outweigh those risks, and that those risks can be mitigated.

Don't mess with Texas. . . or use your middle finger there either

Howard Bashman reproduces part of a Texas Court of Appeals decision that affirmed a motorist's right to give another driver the middle finger, and that such a gesture was not unlawful because it did not tend to incite an immediate breach of the peace. The court explained its reasoning in footnote 1:
The "bird" is "an obscene gesture of contempt made by pointing the middle finger upward while keeping the other fingers down." Merriam-Webster OnLine, at This gesture is of ancient origin:
[T]he middle-finger jerk was so popular among the Romans that they even gave a special name to the middle digit, calling it the impudent finger: digitus impudicus. It was also known as the obscene finger, or the infamous finger, and there are a number of references to its use in the writings of classical authors. . . . The middle-finger jerk has survived for over 2,000 years and is still current in many parts of the world, especially the United States.

Desmond Morris et al., Gestures 81-82 (1979). This symbolic gesture has come to mean many things to many people in many contexts, including "displeasure" and "mild annoyance." See Martha Irvine, Is the Middle Finger Losing Its Badness?, AP Online, Feb. 23, 2003, available at 2003 WL 13367718 (reprinted in several newspapers). See also the cover of the September 20, 2003 issue of The Economist magazine, depicting a cactus in a desert panorama giving the gesture because of displeasure with the outcome of the Cancun trade talks.
Who said judges have no sense of humor? I suspect that this decision would be geographically and contextually dependent, however. Giving the bird in some places would certainly cause an immediate breach of the peace. In other places, it might be regarded as a friendly gesture. Like obscenity, this kind of thing is harder to define as anything more precise than "I know it when I see it."

Formal charges to come against Gitmo suspect

CNN reports that the Pentagon has decided to press formal charges in military court against CPT Youssef Yee, the Muslim chaplain at Guantanamo Bay who stands accused of espionage. The initial charges will be for relatively minor offenses, such as the mishandling of classified documents. Sources tell CNN that more charges will follow over the next several days and weeks, possibly to include capital counts of espionage.
Charges of espionage, which Yee could eventually face, are likely to take considerable time to assemble.

By filing the less-severe charges first, the military will demonstrate that it is continuing to work on the case and that Yee is not languishing in the naval brig at Charleston, South Carolina, where he is being held, officials said.
* * *
The investigation into the apparent infiltration of the remote Guantanamo Bay facility is ongoing, and a senior defense official has told CNN that more arrests may come.
More to follow . . .

Why do Democrats swoon over men in uniform?
Ghosts of the 1960s linger in the relationship between the military and the left

Michael Kinsley asks this question in Slate today, trying to answer why Democrats seem to be so taken with retired-Gen. Wesley K. Clark.
The notion that liberals disdain people in uniform was always a bit of a myth. Even during Vietnam, concern for the loss of young American lives was probably the anti-war movement's most powerful motivation. Since then, sneery right-wingers have had it both ways about liberals and the military: When liberals oppose military action, conservative voices accuse them of betraying our fighting men and women. When liberals support military action, they are accused of callous indifference to the lives of American soldiers.

But the current liberal swooning over (retired) generals is truly something new. A widespread fantasy among liberals who loathe the Bush administration, for example, is that Colin Powell will resign as secretary of state and "say what he really thinks." This will bring down the whole house of cards, these liberals believe. What he really thinks, they think, is more or less what they really think.

There is not much basis for this belief. Powell is skilled at distancing himself from certain policies without seeming disloyal. But if he really were as opposed to the administration he serves as these liberal fantasists imagine, a resignation at this point would come much too late to have any moral force.

Then there is Gen. Wesley Clark. Much of his support comes from people who think they haven't swooned themselves but believe that others will do so. But most of these people are in a swoon whether they realize it or not. They think that Clark has the best chance of defeating George Bush, and that nothing else matters. Their assessment is based on what seems to me a simple-minded view that you can place all the candidates on a political spectrum, then pick the one who's as far toward the other side as your side can bear, and call it pragmatism.
That's one piece of the puzzle. Another more personal account comes from Robert Poe in "Prisoner's Dilemma", which ran in the October issue of The Washington Monthly. Mind you, not every Democrat was a draft resister who was sent to prison, and not every Democrat bears the guilt for those who did so. Nonetheless, I think some of these issues continue to plague the left to this day, and Mr. Poe's account adds a voice not often heard to this debate.
While Bush's poll numbers have been plummeting, the drop reflects worry over the continuing chaos in Iraq more than any growing anger at administration members for ducking service in their youth. Partisan Democrats may be furious that a president who sidestepped combat now poses as a war hero. But what really drives Democrats crazy is that Bush seems to have paid no political price for doing so.

This tolerant public attitude did not begin with Bush. In fact, in the last three presidential elections, a candidate who had served in the regular military was defeated by a candidate who had not (Clinton v. Bush in ' 92; Clinton v. Dole in '96; Bush v. Gore in '00). It has now become unremarkable for those who in their youth avoided putting themselves on the line for their country and their ideals to successfully impugn the patriotism of political opponents who served with honor. Think of Sen. Saxby Chambliss (R-Ga.). He got out of Vietnam with a bum knee, but unseated former Sen. Max Cleland (D-Ga.), a Vietnam veteran and triple amputee, with ads attacking Cleland as soft on national security. Somehow, in the public mind, the ancient link between physical courage and patriotism has been broken in this country.

One can imagine any number of reasons for this shift. One obvious factor is the end of the draft in 1973, which no longer forces every young man to consider the possibility of military service. Another is the triumph of individual market thinking in this country--the growing sense of personal freedom and individual entitlement in modern life, and the corresponding fading of the notion that one has a duty to anything outside one's self and family. But there is another, related factor for which liberals--especially those of my generation, who came of age in the late 1960s--bear heavy responsibility. Too many of them opposed the Vietnam War in ways that required no personal sacrifice, while at the same time successfully grabbing the banner of high idealism by growing their hair long and marching in anti-war protests. Though they may not want to admit it, members of the anti-Vietnam War movement, who today dominate the opinion-making class, helped erode the connection in the public's mind between patriotism and courage, idealism, and sacrifice. And that change in public attitude has let today's so-called "chicken hawks" off the hook.
* * *
In 2003, it turns out that my questions about the anti-war movement do again matter. The reality of a major war launched by the Vietnam generation for reasons that, just as with Vietnam, didn't quite make sense, finally drove me to think through the implications of Lompoc's missing activists. I quickly concluded that the anti-Vietnam War liberals and the pseudo-patriotic neocons were more alike than different. Both embodied a privileged elite claiming to be paragons of idealism and patriotism, while hiding behind college or medical deferments to avoid putting themselves on the line, either in rice paddies or in prison. Indeed, there's a case to be made that, for conservative draft dodgers, one of the biggest benefits of the war with Iraq has been its extreme (and certainly intentional) divisiveness, which helps obscure how closely, in terms of character and integrity, they resemble anti-Vietnam War draft dodgers.

But more important, I realized that the success of the anti-war movement in selling itself as idealistic, while never showing up to do the hard time, directly paved the way--in fact, pioneered the techniques--for neocons to sell themselves as courageous patriots, after having never shown up for service in Vietnam. And with neocon draft dodgers now trying to prove their patriotism at the cost of American lives, that leaves anti-Vietnam War liberals with a lot to answer for.
The puzzle's still not complete. I think that Mr. Kinsley and Mr. Poe add two important parts of the picture, but there's more to be written.

First, Mr. Poe's right that the Vietnam War set in motion a number of dynamics which affect partisan politics to this day. After the advent of the all-volunteer force in 1973, the Vietnam War had an enormous impact on the self-selection of America's "best and brightest" for military service. No longer did the George Herbert Walker Bush's, John F. Kennedys and Al Gores of America's elite join the military, as they did in WWII and Vietnam respectively. Indeed, neither did the young conservatives of the 1970s, who opted instead for the fast-track to money and/or power (see, e.g., Dick Cheney, John Ashcroft, Paul Wolfowitz, Tom Delay, Richard Perle, etc)

Fast-forward thirty years, and suddenly you have an elite on both sides of the aisle with a dearth of military experience. The number of veterans in Congress has dropped over the last 30 years; so too has the number of veterans appointed to the bench or executive positions. Unfortunately, this dynamic affects the Democratic Party more, because of the self-selection inherent in an all-volunteer force. Values and attitudes towards the military translate across generational lines into the choices made by children. More than ever, with our all-volunteer force, these choices shape the military's composition, which in turn produces the pool of eligible veterans to serve at high levels of our government.

My experience, growing up in liberal Santa Monica during the 1980s, was that most parents did not encourage their children to consider military service -- even for a brief tour, even for the educational benefits. A lot of this traced, in my opinion, to the attitudes harbored by my friends' parents who grew up during the 1960s, and held certain attitudes towards the military as an institution. Those attitudes were passed onto the children of my generation, who have had the opportunity to choose or refuse military service in the absence of a draft. These attitudes were enough to shape school choices and career choices, and steer the overwhelming majority of my friends away from uniformed service. Those who did serve usually had some specific reason, like college financial aid or a service academy appointment. Most went off to college, found a career, and moved into adulthood without a serious glance towards military service.

The result is an ever-increasing divide in American society between those who've served and those who haven't. I have no data to back this up, but my emprical observation is that this divide correlates quite well with political attitudes and socioeconomic status, with both liberals and the wealthy shunning military service. (One caveat: these same groups that shun military service often flood other forms of public service. I think that fact deserves mention, although for obvious reasons, such public service doesn't carry the same credential for issues of national security.) Again, fast-forward 30 years after these decisions were made, and you see a liberal and wealthy elite that contains disproportionately less veterans.

So what? Why does veteran status matter in politics?

At the end of the day, this boils down to the politics of identity. A white man cannot criticize affirmative action with the same credibility as a black man; he even risks being called a racist for his views. An old man cannot criticize the right to choose an abortion without being labeled a hypocrite and worse. Similarly, a non-veteran cannot advocate for military action -- or the lack thereof -- with the same credibility as a veteran. I don't think this is the most intelligent want to assess credibility; I don't think someone's c.v. necessarily affects the quality of their ideas. But the American public does not see it that way. These credentials serve as shorthand for the American public; they enable voters to make decisions about credibility and trustworthiness.

The recognition of this fact is why I think that Democrats swoon over men in uniform. It's more than guilt over opposition to Vietnam; it's more than trying to offset the political advantage of the incument president. This swooning is about demonstrating credibility on issues of national security where the Democratic party currently has -- rightly or wrongly -- less credibility than the GOP. Wes Clark and John Kerry both realize this, and have each tried to leverage their military records for political gain. Whether their war records will make any difference in how they serve as Commander-in-Chief is a matter for debate. (FDR did well as a wartime President with no uniformed service; LBJ did a less than stellar job despite service in WWII.)

I don't like the politics of identity, and I suspect most politicians don't either. But the Democrats have to play the game, and that means appealing to voters in 2004 on national security issues. If winning takes putting a veteran on the ticket, I wouldn't be surprised to see Dems doing what it takes to win. I'm okay with that. After all, candidates have been picked for decades because of their geographic value, religion, age, and other "important" reasons. In 2004, the key constituency may not be Southerners or moderates or the elderly -- it may be Americans who care about their security. If that's true, why not pick a veteran?

Wednesday, October 8, 2003

Sodomy and 'don't ask, don't tell' go to court

The U.S. Court of Appeals for the Armed Forces heard arguments yesterday over whether the Supreme Court's decision in Lawrence v. Texas requires the military's sodomy statute -- Art. 125 of the Uniform Code of Military Justice -- to be overturned. The facts of the case seem tailor made for the challenge: an airman was prosecuted for having off-base sodomy with another airman. The charges squarely implicate Art. 125, notwithstanding some factual issues at trial surrounding consent and even whether the sodomy occurred. Howard Bashman at How Appealing provides this first-hand report from the argument yesterday before the CAAF. (Also see this discussion of the issues from NPR this morning)
. . . the judges appeared troubled by the positions taken on all sides. Counsel for the government (a career military lawyer), insisted (unsurprisingly) that Lawrence did nothing to Article 125. Citing Justice Scalia's characterization of the Lawrence majority opinion, she insisted that Lawrence, at best, subjects Article 125 only to rational basis review -- to which one of the judges pithily responded, "The traditional way to read opinions is to look at a the majority opinion, not the dissent." Nevertheless, even assuming that rational basis review should apply, two of the five judges seemed clearly troubled by the rational bases offered by the government -- unit cohesion, maintenance of discipline, morale, etc. Article 125 criminalizes homosexual as well as heterosexual sodomy, and some of the judges couldn't seem to understand how private, consensual sodomy (whether heterosexual or homosexual) could possibly relate to these legitimate interests. While government counsel appeared to concede that some heterosexual sodomy falling under Article 125 would be protected by Lawrence, she insisted that Article 125 was constitutional as applied to this particular defendant, who was convicted of both consensual and nonconsensual sodomy. When pressed to explain why, she rather conclusorily returned to the litany of "unit cohesion, maintenance of discipline, and morale" -- an explanation with which the judges did not seem particularly impressed.

Counsel for amicus, who was represented by a gentleman from Wilmer Cutler, argued that Lawrence mandates strict scrutiny of the statute. According to amicus, when the Supreme Court said in Lawrence that the Texas statute served "no legitimate purpose," the Court wasn't implying that it was engaging in rational basis review. Rather, according to counsel, the Supremes meant that the Texas statute served not even a legitimate purpose. The sweeping language of Lawrence (and the cases upon which it relies), he maintained, makes clear that prohibitions of Article 125 should be strictly scrutinized, and that the professed justifications of the military are (a) hardly compelling or (b) narrowly tailored. Therefore, Article 125 is unconstitutional on its face. The judges, however, seemed somewhat skeptical of this argument. One judge posed the following hypothetical: suppose that the Secretary of the Air Force or a military commander issued a rule or a general order that prohibited the conduct described in the Don't Ask Don't Tell statute, 10 U.S.C. 654(f)(3)(B) (mandating discharge for engaging in "any bodily contact which a reasonable person would understand to demonstrate a propensity or intent to engage in [a homosexual] act"). Now suppose a servicemember violated that order. Could the servicemember then be prosecuted for insubordination? Under amicus's theory, wouldn't Lawrence bar such a prosecution? Therefore, doesn't amicus's theory call into question the whole Don't Ask Don't Tell policy?

Appellant's civilian counsel initially declined to opine on what level of scrutiny should be applied following Lawrence. His approach appeared to be, Lawrence said what it said, namely, the state can't criminalize consensual sodomy, and the military is no exception. Counsel also seemed to distance himself from the facial challenge advanced by amicus, and directed the court's attention to the facts of this case. The defendant was convicted (among other things) of engaging in consensual sodomy off base. Lawrence, if anything, should prohibit prosecution for that. The judges responded, however, by noting that simply because the government failed to prove that the sodomy was forcible does not mean that it was consensual (apparently the testimony of the "victim" was inconsistent on this point).
Analysis: Shortly after the Court's opinion in Lawrence, I wrote a piece for Findlaw and CNN.Com opining that the courts would probably defer to the military on deciding whether "don't ask, don't tell" should remain in place. This conclusion was based on the courts' longstanding tradition of deference to the executive branch on national security grounds -- present in both the gay rights and terrorism contexts (see, e.g., the Hamdi and Padilla cases). If this were a challenge to "don't ask, don't tell" (codified at 10 U.S.C. 654), I would stand by that conclusion with respect to this case before the CAAF. But this is not a facial challenge to "don't ask, don't tell" -- it's a challenge to the military's sodomy statute. The Supreme Court held in Lawrence that you cannot criminalize sodomy, among other things, in an extremely powerful and broadly-written opinion by Justice Kennedy. The CAAF judges are bound by Supreme Court precedent just as any Art. III appeals court would be (the CAAF actually sits in Art. I as an executive branch court). I think they will apply Lawrence to hold that Art. 125 of the UCMJ is unconstitutional, and that the military can no longer criminalize sodomy.

That said, I do not think they will rule so broadly so as to overrule "don't ask, don't tell." For one, that's not the issue of the case -- this is a criminal appeal of a sodomy conviction, not an appeal from a discharge for violation of 10 U.S.C. 654. Second, as a matter of administrative law, the "don't ask, don't tell" policy can stand separately from the sodomy statute; one is not legally dependent on the other. (The same is also true of the Solomon Amendment, which threatens to cut off federal funding for universities if the universities ban ROTC or military recruiting on campus. This funding restriction is not legally dependent on the the legality of Art. 125 or even 10 U.S.C. 654. A challenge to the Solomon Amendment predicated on the legality of 'don't ask, don't tell' conflates the issues and is almost surely destined for failure.) If the court overturns Art. 125, it will certainly give the Lambda Legal folks some more ammunition for their fight against "don't ask, don't tell". But the CAAF's decision on Art. 125 -- if it overturns the statute -- will not overrule that "don't ask, don't tell" per se.

Out of the loop
SecDef says he didn't know of White House plans to reorg for Iraq

The Washington Post (and other media) report today that Secretary of Defense Donald Rumsfeld was caught by surprise when the White House announced that it would create a new top-level working group for the management of America's occupation of Iraq.
Rumsfeld said in an interview with the Financial Times and three European news organizations that he did not learn of the new Iraq Stabilization Group until he received a classified memo about it from national security adviser Condoleezza Rice on Thursday.

Rumsfeld was asked several times why the changes were necessary. "I think you have to ask Condi that question," he said, according to a transcript posted on the Web site of the Financial Times.

Pressed, he said: "I said I don't know. Isn't that clear? You don't understand English? I was not there for the backgrounding."

Rumsfeld's tart remarks offer a window on the tensions among members of President Bush's war Cabinet, which are vividly described by administration officials but are rarely visible to outsiders. Rumsfeld's bluntness has occasionally rankled allies and caused headaches for the White House, but Bush is said to remain supportive.

The new group, headed by senior Rice aides at the National Security Council, gives the White House a stronger role in overseeing the reconstruction effort, which is under attack on Capitol Hill as poorly planned and unexpectedly expensive. Republican sources said the White House realizes that the consequences could be dire if the pace of the reconstruction does not improve markedly before the 2004 presidential election campaign begins.

Rumsfeld said he has not talked to Bush about the changes. When an interviewer said it sounded as though Rumsfeld had not been briefed about the changes before the memo and an interview Rice gave the New York Times, he replied, "That's true."
Analysis: Two quick points emerge from this story. First, Don Rumsfeld is no teddy bear, and he's no diplomat either. Asking reporters from the Financial Times (a British paper) and three other European papers if they speak English in an interview is a surefire way to make enemies. It's insulting, and it's the kind of comment likely to enrage the citizens of Europe once again about Rumsfeld.

The second point of analysis is that the SecDef has been cut out of the loop. Not just in a small way, like he wasn't invited to some ceremony at the Rose Garden, but in a very big way. Until this working group was formed, the chain of command for Iraq ran straight from the President to the SecDef to L. Paul Bremer III and General John Abizaid, the CENTCOM Commander. Now, it looks like we have a working group interposed between the President and SecDef, and more importantly, we have the elevation of State and other cabinet agencies to a peer position within this group. That the SecDef wasn't informed of this before it happened is very significant, especially in this administration. I think it's too early to tell precisely what this means, but I think it's one indicator that SecDef Rumsfeld might not be asked back for a second Bush administration.

High crimes at Guantanamo Bay

I've written an article for Writ, an online legal magazine, on the allegations at Guantanamo and why they're worthy of capital punishment if true. The piece looks at why espionage and aiding the enemy charges in this case are so serious, and how the actions of a few men might damage the entire global war on terrorism.
The essence of the charges against these three men is this: According to the government, they gathered classified information about Guantanamo Bay, and interfered with the interrogation effort there. If these allegations are proven, the men could be convicted of capital espionage, defined as communicating, delivering, transmitting, or attempting to communicate, deliver or transmit information about nuclear weaponry, military spacecraft, early warning systems against large-scale attack, war plans, communications, or other major weapons systems. (A lesser, non-capital charge of espionage exists for communication information about other secret matters).

Yee and Halabi could also be convicted of aiding the enemy, defined as giving (or attempting to give) "arms, ammunition, supplies, money, or other things" to the enemy, communicating with the enemy, or having "any intercourse with the enemy, either directly or indirectly".

If convicted, the two military defendants could face the death penalty. (In contrast, Mehalba currently faces up to 5 years in federal prison for his alleged false statements to airport officials, but more charges are expected that could lead to a life sentence for him.)

At first glance, imposition of the death penalty here might seem severe, especially for non-violent crimes; after all, murder is the classic death-eligible crime. But, as the government doubtless points out, these crimes, if they are proven, will have jeopardized not just one life, but literally thousands, for they could have a lasting impact on America's ability to understand the threat it faces from Al Qaeda.

Viewed in this context, the death penalty begins to seem far more appropriate. Certainly few who support the death penalty for murder would oppose it for Richard Reid - the so-called "shoe bomber" who tried to down a passenger airliner. Yet if the allegations against Yee and Halabi are proven, they have put many, many more people in serious jeopardy than even the notorious Reid did.

Tuesday, October 7, 2003

The absentee ballot nightmare in California
Could thousands of deployed soldiers be disenfranchised by this rapid recall?

The New York Times has an interesting story today on the mess we're likely to see in the next several days concerning absentee ballots for today's gubernatorial recall election. The Times reports that a record 3.2 million Californians have requested absentee ballots, and that just 2 million of those have returned them thus far -- leaving 1.2 million ballots outstanding as of election day.
Of that total, 800,000 absentee ballots and an expected 400,000 ballots that will not be counted until after election night because of anticipated snags will not be included in preliminary results from the counties, said Stephen Weir, the clerk-recorder of Contra Costa County in Northern California and the treasurer of a statewide association of county clerks and registrars.

"If it's close, it's bloody," said Mr. Weir, who estimated that 10 percent to 12 percent of the votes statewide would be counted after election night. "The next day we're dead, and people want to know what's left to be counted, and the bottom line is we're talking about 1.2 million votes that are not counted election night."

There are too many unknowns, including how many of the 15.4 million registered voters will turn out to vote and how the votes will shake out, to predict the influence of the absentee ballots. But Mr. Weir was estimating that 8 million to 10 million voters would turn out, with at least a third of them voting by absentee ballot. County election officials, who said absentee ballots had decided local elections in recent years, said on Monday that if the race was close enough, it could take the counties, who have up to 28 days after the election to count the absentee ballots and certify the election results, several weeks to finalize a tally.
Let me add another variable here: military voters. I probably should've written an op-ed about this two months ago when there was time for the ACLU to make these arguments before the Ninth Circuit. If I'm right, thousands of military voters will not have their votes counted in this election. The culprit is the mail system, and specifically the tension between the tight timeline (60 days) of this recall and the relatively slow mail pipeline to deployed soldiers overseas.

Federal law (the "The Uniformed and Overseas Citizen Absentee Voting Act") provides for some mechanisms to assist military personnel overseas with voting, but these mechanisms are all premised on the fact of a regularly scheduled election with a lot of lead time.
The UOCAVA provides for a "back-up" ballot, called the Federal Write In Absentee Ballot ("FWAB"), should a citizen overseas not receive his or her regular ballot from the state or territory. Under the UOCAVA, citizens can only use the FWAB under three, very specific conditions. To be eligible for this ballot, the citizen must: (1) Be located overseas (including APO/FPO addresses); (2) Have applied for a regular ballot early enough so that the request is received by the local election official at least 30 days before the election; and (3) Not have received the requested regular absentee ballot.
In this case, Californians in uniform overseas have not had such lead time. They really have had 60 days, assuming they were plugged into the news and monitoring this situation. It's possible that a Californian deployed overseas might have missed both the 30-day cutoff for requesting an absentee ballot and the 30-day cutoff of requirement (2) above.

There are really two groups of soldiers overseas that are likely to be disenfranchised here:

(1) Reservists deployed from their homes inside California. Thousands of reservists have been mobilized from California and sent to Iraq. These soldiers likely deployed with a mail forwarding order in place, so that their mail would be forwarded by the U.S. Postal Service from their civilian address to their military APO address. In the best of times, the USPS can forward such mail domestically in a few days. In the military, such mail deliveries can take longer. Mail delivery in theater is less frequent (2-3 times per week), and it has to account for variables such as security.

- Best case (and also most unlikely) scenario: the reservist applied for an absentee ballot at the time of deployment, possibly in anticipation of the March 2004 primary. The absentee ballot gets sent to the home address in California, then forwarded to the soldier, who may or may not have time to read up on the issues. He/she then sends it back to California through military mail, which can take 2 weeks or longer to get back to the states.

- Middle case: the reservist deployed with other things on his mind and did not pre-request an absentee ballot. The regular ballot announcements arrive in the mail, get forwarded to him in Iraq, where they arrive after the absentee ballot deadline has already passed. It's too late to request an absentee ballot, and this soldier is precluded from using a Federal Write-in Absentee Ballot under the UOCAVA.

- Worst case (and also quite likely): the reservist wasn't even registered at the time of the election, possibly because he just turned 18 or because he had other things on his mind. He wants to start voting, because he feels a sudden sense of civic engagement while deployed to a combat zone. The soldier learns of the election late because he gets an infrequent news feed through his unit newsletter and First Sergeant. The soldier tries to register to vote, but by the time his registration gets to L.A. County's Registrar-Recorder, he's missed the deadline for the Oct. 7 election.

(2) Active duty soldiers with a home of record in California. There are literally thousands of these soldiers on active duty, and I was one them. For various reasons (such as maintaining residency for future tuition purposes), these soldiers maintain California as their state of legal residence. Most of these soldiers are permanently registered as absentee voters, meaning that their absentee ballots get generated automatically just as an infirm person's ballot would be. However, these soldiers' ballots still have to contend with the military mail system to get to and from the combat zone. And it's unlikely the soldier will have full access to the Los Angeles Times or San Francisco Chronicle to become an informed voter, so the vote may be somewhat diluted by an information deficit.

Most soldiers won't fit any of these hypotheticals, but they'll fall somewhere near the middle case. Legally, it's hard to pin the blame for why their vote won't count. Certainly, the tight timeline of the election deserves most of the blame, because it's simply too short of a time window for the mail and absentee ballot systems to work properly. The mail service deserves some of the blame too. So do the soldiers, for not pre-requesting absentee ballots.

Unfortunately, the bottom line is this: many of these soldiers' votes won't count. I think that democracy suffers when anyone's vote goes uncounted. But I think it's patently offensive that many of our soldiers serving in combat overseas should lose their democratic voice because of the mechanics of this recall.

One of the strongest arguments for the 26th Amendment was that Americans who were old enough to fight and die for their country ought to have the right to vote. I think the connection between suffrage and service is very real, and that these soldiers are literally earning their right to vote right now with their blood and sweat in Iraq. Our election system has to do better at making their votes count.

Update: Every news outlet in Los Angeles is projecting a big win for Arnold, which essentially makes the issue of military absentee ballots moot. I think that's true as a practical and legal matter, but the larger issue of military disenfranchisement remains. I still think we need to do more on this front.