Friday, December 12, 2003

How to grade our progress in Iraq

Austin Bay has an interesting essay in today's San Antonio Express-News about how to best measure our progress in Iraq, and how to measure whether we're winning or losing. This is something I've opined on also (here and here), and generally speaking, I think it's very hard to define the metrics of success/failure in war. But Mr. Bay, a former military officer too, has some good ideas on the subject:
Football fans check the scoreboard, clock and field position, and if they know the inside game, estimate team morale. In a political campaign, polls clue candidates.

Gauging success in war — as the battle progresses — is iffy, more art than science. Measures of effectiveness, or MOE, is military jargon for assessing an operation's success.

* * *
Measuring security:

The number of free Iraqi police and paramilitary personnel in the field is a rough yardstick, but ultimately Iraqi security is their job. The major U.S. mistake prior to Operation Iraqi Freedom was failing to create a functioning Iraqi constabulary. The United States had 3,000 exiles training in Hungary, but that simply didn't cut it. Interim coalition grade: D.

The number of violent incidents involving the Baath or "foreign" terrorists is a gauge. This figure can also mislead. The paradox: Incidents can increase due to coalition success. Bet that incidents will spike prior to Iraqi elections, but that will be desperate violence by vicious losers. Interim grade: C.

The geographic distribution of violent incidents. Most are confined to the "Sunni Triangle." Interim grade: A-.

Prisoners and casualties. If the 5,000 Baath fighter estimate is accurate, arresting or killing them is an MOE. Dare call it "body count?" The analog isn't Vietnam, it's the Untouchables breaking Al Capone. Interim grade: B-; capture or kill Saddam? A-.

Implementing "rule of law." War crimes trials recommended by the Iraqi Governing Council are a key milestone. Grade: incomplete.
Analysis: The key to these metrics, as to any strategy, is the linkage between the metrics on the ground in Iraq and the strategic goals we've set for the country. Our people in the field naturally follow these metrics, doing all they can to affect them one way or another. If the metrics are decoupled from the goals, our field officers will pursue the metrics, because that's what they're being evaluated against. And over time, you'll gradually see dissonance between how we measure success and how we define success.

So what are America's metrics of success in Iraq? Well, I think Mr. Bay has most of the important ones in his piece. But the official ones are probably being kept pretty closely guarded. Why? Because you don't want to telegraph your gameplan to the enemy, at least to the extent that you can avoid it. If we convey our precise strategy and precise measures of success, we'll create a clear roadmap for the Iraqi insurgents to disrupt this plan. At the same time, the White House has to sell this plan to the American public, and continuously demonstrate success, so some amount of transparency is necessary. The trick is finding the balance.

To make omelettes, you've got to break a few eggs...
New Army chief fights lethargy, tradition, in bid to remake the force

Historically, armies learn more from defeats than from victories. America's Army today is the product of victory in the Cold War and victory in Gulf War I. But that's not good enough for Gen. Pete Schoomaker, the new Chief of Staff of the Army. As Greg Jaffe reports in today's Wall Street Journal (subcription required), he wants to remake the Army so that it can fight tomorrow's wars -- whether they be on the streets of Baghdad, the jungles of South America, or the plains of Europe.
"We're going to have to [change] some of the things that made us the best Army in the world," Gen. Schoomaker told them. "Our values are sacrosanct. But everything else is on the table."

Spearheading the change is an officer almost as unconventional as the Army he is trying to build. Gen. Schoomaker, who was called from retirement by Defense Secretary Donald Rumsfeld this past summer, spent much of his career leading the military's most secret, counterterrorism units behind enemy lines in the Middle East, Central America and other places. His experiences set him apart in an Army that has focused largely on preparing for a major war against a large land power such as the Soviet Union or North Korea.

The net result of the 57-year-old general's changes will be a force that can fight big wars but will also be far more adept at counterinsurgency campaigns, peacekeeping and even some nation-building -- a task that President Bush repeatedly disparaged when running for office.

* * *
"Today's wars are not over when the last shell of the last big battle explodes," explains Joseph Collins, Mr. Rumsfeld's deputy assistant secretary of defense for stability operations. "They're over when we have established a government that can stand on its own, support its people, control its borders and not be a safe haven for terrorists."

If the focus on post-conflict operations represents a change for the Bush administration, it's an even bigger shift for the Army. The service emerged from its scarring defeat in Vietnam deeply committed to avoiding counterinsurgency, nation-building missions.

Instead the Army focused almost exclusively on fighting a big war with the Soviet Union. It designed new equipment such as the M-1 tank and the Bradley fighting vehicle that was ideally suited to war with the Soviets. It developed a demanding, new concept of fighting war -- the highly complex and coordinated air-land battle -- that drove Saddam Hussein's forces from Kuwait in the Persian Gulf War.

With the end of the Cold War, the Army began to see regular demands for peacekeeping. It handled such missions well in Haiti, Kosovo and Bosnia, but it never fully embraced the task of maintaining stability after the end of a combat mission. Officers frequently complained that peacekeeping undermined their readiness to fight a big war. The Army broadened the scope of some of its training centers in the late 1990s to focus more on urban combat and crowd control, but it didn't provide written peacekeeping procedures for front-line company and platoon commanders until this year.

"We haven't approached stability operations in as intellectually rigorous a way as we have combat," says Army Maj. Gen. James Dubik. "Maybe we allowed ourselves as an army to define ourselves too narrowly and in ways that were inapplicable to how we actually served the nation."
Analysis: This last quote reveals an awful lot about the Army and America's defense establishment today. In the 1990s, the military fought to define itself after the end of the Cold War, and never quite got it right. Large parts of the defense community only wanted to focus on "warfighting" -- and not just small warfighting (see the story on the Marines below), but on big combined-arms wars between states. As the last decade has shown, that focus may have been off somewhat. America's military earned its pay during the 1990s in places like Somalia, Haiti, Bosnia, Kosovo, and on the training fields which enabled it to prevail in Afghanistan and Iraq.

So far, Gen. Schoomaker seems like the right guy for the job with the right vision for the Army. He has refined his ideas into a set of "focus areas" for the force, and I think they're pretty good. Here's a representative sampling:
* The Soldier - Develop flexible, adaptive and competent Soldiers with a Warrior Ethos.

* The Bench - Prepare future generations of senior leaders. Identify and prepare select Army leaders for key positions within joint, interagency, multinational and Service organizations.

* Combat Training Centers/Battle Command Training Program - Focus training at CTC and BCTP to meet requirements of current security context, and Joint and Expeditionary team.

* Leader Development and Education - Train and educate Army members of the Joint Team.

* * *
* Active Component /Reserve Component Balance - Redesign the force to optimize the active and reserve component (AC/RC) mix across the defense strategy.

* * *
* Actionable Intelligence - Provide situational understanding to Commanders and Soldiers with the speed, accuracy and confidence to impact current and future operations.
Of these, Gen. Schoomaker has said that "the soldier" is the most important. He has even promulgated a new "Soldier's Creed" (modeled on the Ranger Creed) to build the warrior ethos in America's Army. A common criticism of today's Army is that it has become too bureaucratized; too lethargic; too specialized -- in other words, that many of its soldiers aren't warriors anymore. Gen. Schoomaker is right to focus his efforts first on the soldier -- the basic building block of the force. As one retired general famously said, "Soldiers aren't in the Army -- they are the Army."

The kindler, gentler U.S. Marines
Force headed to Iraq plans to use velvet glove, not iron fist

Michael Gordon writes in today's New York Times that the Marine Corps unit headed to Iraq this spring has plans to do things a little bit differently than the Army. (Thanks to Matt Rustler for the heads up) He starts by writing "No force has a tougher reputation than the United States Marines. But the marines who are headed to Iraq this spring say they intend to avoid the get-tough tactics that have been used in recent weeks by Army units." My first thought was: another reporter smitten by the Marine Corps dress uniform, and probably lots of alcohol at the Marine Corps ball. But there's actually more to the story here, and I think it deserves a read.
Marine commanders say they do not plan to surround villages with barbed wire, demolish buildings used by insurgents or detain relatives of suspected guerrillas. The Marines do not plan to fire artillery at suspected guerrilla mortar positions, an Army tactic that risks harming civilians. Nor do the Marines want to risk civilian casualties by calling in bombing strikes on the insurgents, as has happened most recently in Afghanistan.

"I do not envision using that tactic," said Lt. Gen. James T. Conway, the commanding general of the First Marine Expeditionary Force, who led the Marine force that fought its way to Baghdad and will command the more than 20,000 marines who will return to Iraq in March. "It would have to be a rare incident that transcends anything that we have seen in the country to make that happen."

The increase in guerrilla attacks on American troops in Iraq has prompted Army units in the so-called Sunni triangle in central Iraq to adopt a hard-nosed approach — and spawned a behind-the-scenes debate within the American military about the best way to quash the insurgents.

While some Army commanders insist the hard-nosed tactics have been successful in reducing enemy attacks, other military officers believe they are alienating Iraqis and thus depriving American commanders of the public support and human intelligence needed to ferret out threats.

In an interview at his headquarters at Camp Pendleton, General Conway was careful not to criticize the Army. Still, he indicated that he plans to pursue a very different strategy.

"I don't want to condemn what people are doing," General Conway said. "I think they are doing what they think they have to do. I'll simply say that I think until we can win the population over and they can give us those indigenous intelligence reports that we're prolonging the process."
Analysis: Of course, this isn't new for the U.S. Marines, who in many ways represent America's original counter-insurgency force. Max Boot relays the illustrious history of the Marines in places like Guatemala, Mexico, the Phillipines in his book Savage Wars of Peace, a must-read for anyone interested in the history guerilla warfare. Indeed, the Marines wrote a doctrinal treatise on the subject called the Small Wars Manual, and this text remains the gold standard today for how to wage a counter-insurgency effort. The Marines have a recent history of training for and executing these kinds of missions, including Somalia, Haiti and other efforts in Africa. Although they haven't had as much play in the Balkans, the Marines have a great institutional history for this kind of mission.

So what's the right answer -- iron fist or velvet glove? Both, really. At times, you've got to work with the Iraqis hand-in-hand. This is what nation-building is all about, and you can't really hope to do it right unless you make Iraqis part of every effort from road building to school teaching. But when the guerillas come out to attack your forces, you have to come down on them like a ton of bricks -- hard and fast. I agree with the Marine general who says that such force must be carefully targeted, and I think that's a key lesson to draw from recent experience in Iraq. But the best way to fight a guerilla is to "out-g the g", to use retired Colonel David Hackworth's term of art. The Marines have trained on guerilla warfare for some time, and their light infantry is really good at this kind of thing. I think their deployment bodes well for the U.S. endeavor in Iraq.

Thursday, December 11, 2003

Los Alamos National Lab slips a disk... or several

Noah Shachtman, who's been covering the capers at Los Alamos and the other two national labs for a while now, passes on an unfortunate bit of news from the lab. They lost several computer disks thought to contain classified information. Now, this isn't just classified information if it's at LANL. It's super-secret-squirrel classified information about America's holiest of holies -- our nuclear arsenal. Generally speaking, it's not good to lose information in a place like this. If I were on a Congressional committee with jurisdiction over DOE, I'd probably be scheduling my hearings right about now...

The trials and tribulations of Zacarias Moussaoui

Stuart Taylor Jr. has a great essay in the National Journal on the case of Zacarias Moussaoui, a man who has probably done more to frustrate Attorney General John Ashcroft than any man save Larry Flynt. (Thanks to Howard Bashman for the link) Mr. Taylor is a widely respected legal journalist, and I thought his article had a particularly good intro:
It would be no loss to humanity if we dragged Zacarias Moussaoui in front of a firing squad tomorrow and shot him. He has boasted in open court of being a "member of Al Qaeda" and loyal to Osama bin Laden, and of knowing "exactly who" committed the 9/11 mass murders. He has declared, "I, Zacarias Moussaoui, urge, incite, encourage, solicit Muslim to kill Americans, civilian or military, anywhere around the world." He is crazy and evil.

But Attorney General John Ashcroft seems so eager to kill the man that he would shoot a hole in the Constitution to get him. Ashcroft wants to put Moussaoui on trial for the capital crime of complicity in the 9/11 plot, without letting his lawyers take the testimony of three captured Qaeda leaders who may have told interrogators that Moussaoui did not participate in it. That's the watered-down notion of justice that an Ashcroft subordinate urged a federal appeals court in Richmond, Va., to endorse on December 3.

The appeals court should say no. This might keep Ashcroft from getting the death sentence he craves for Moussaoui, since the charges connecting Moussaoui to 9/11 -- which Moussaoui denies, and for which the evidence seems thin -- appear to be the only ones punishable by death under current law. But Moussaoui is doomed to die in prison in any event, of old age if not by execution. And the difference between killing him and locking him up forever is simply not important enough to justify an unfair trial. Indeed, putting Moussaoui to death would be so idiotic that it's hard to believe any sensible official really wants to do it: He's nuttier than a fruitcake, his French mother is an articulate and sympathetic advocate for mercy, and he would be featured as a martyr on Qaeda recruiting posters all over the world. Killing Moussaoui would only increase the supply of terrorists bent on killing Americans.
It just gets better from there -- read the whole thing.

Wednesday, December 10, 2003

Military defense lawyers to file amicus brief in Gitmo case

Eric Muller points us to an intriguing Law.Com article about some of the defense attorneys in the Pentagon's Office of Military Commissions (which falls under the Office of General Counsel) who are planning to file an amicus brief in the the Al-Odah v. United States case now before the U.S. Supreme Court. Admittedly, this is an unorthodox move for someone in the government to speak out on a pending Supreme Court case, and especially for them to oppose the government position.
In an unusual move that will place them at odds with their commander in chief, uniformed military defense lawyers in the Pentagon's Office of Military Commissions are preparing an amicus brief in the Guantanamo habeas case supporting detainees who are seeking federal court review of their detentions, say sources familiar with the brief.

The defense team, led by Air Force Col. Will Gunn, is likely to argue that preserving ultimate Supreme Court review is essential to the integrity of military commissions, according to those sources. Gunn declined to comment.

* * *
On Nov. 10, the Supreme Court agreed to review a March 2003 ruling by the U.S. Court of Appeals for the D.C. Circuit that federal courts lack jurisdiction to review the detentions of Hicks and several other prisoners at Guantanamo. The justices are currently considering whether to take up Hamdi's petition.

Lawyers involved in the cases say that allowing Hicks and Hamdi to consult with lawyers now signals that the administration may be responding to the pressure of judicial review.

"This happened because the Supreme Court said it might have jurisdiction. It would never have happened otherwise," says Thomas Wilner, a partner in the D.C. office of New York's Shearman & Sterling who represents 12 Kuwaiti citizens held at Guantanamo Bay in the case before the Supreme Court. "It's a shame the administration needs to be put under pressure to do what's right. Allowing someone to see a lawyer should be the normal course of events."

Former DOJ official John Yoo, who analyzed legal issues related to terrorism and detentions as an attorney in the DOJ Office of Legal Counsel, says he does not feel that the administration is attempting to influence the Supreme Court.

"I see this as a sign of a system that is still developing," says Yoo, a visiting professor at the University of Chicago Law School. "There is always going to be a fundamental tension between the purpose and processes of our criminal justice system and the military-intelligence world. We're still figuring out what rules apply."
Analysis: I'll try to find the amicus brief and parse it for legal issues later today, because I'm interested in what it has to say. But politically, I think the analysis here is quite simple. The OMC lawyers received permission (and they had to get permission) from the Pentagon to do this. The reason they got permission is because the Pentagon wants to boost the legitimacy -- in any way it can -- of the detentions and military commissions at Guantanamo Bay. Allowing military defense attorneys to file an amicus brief like this only raises their credibility as independent defense counsel, and shows the world that the Pentagon isn't quite so monolithic on this issue. I'm not sure if this strategy will be effective or not, in a political sense. But if the success of Carter Phillips' "green brief" in Grutter v. U.Michigan is any indicator, the Court may be open to hearing unconventional uniformed points of view.

Update: I can't find a draft of the amicus brief, although I can guess what it's going to say based on the arguments against military commissions that I've read recently. A number of the "insider" pieces on the subject are available from the National Institute of Military Justice's webpage, which is a great resource on the subject. (See the November 2003 issue of Military Lawyer for some great articles on the subject, including one by the head prosecutor in the Office of Military Commissions defending the tribunals) Here are some of the general arguments I'd expect to see from the OMC defense attorneys. (This is a SWAG on my part)

(1) America's federal courts should be available as an avenue of collateral attack for any detentions by the American government, whether they are military or criminal in nature. There is no principled way to distinguish the terrorism cases which fall on the seam of law and war, and we should resolve this gray area by allowing all of these detainees to at least challenge their detention through the habeas corpus procedure. This is the basic issue before the Court in Al-Odah v. United States -- whether federal courts have jurisdiction to hear the challenges of the men at Guantanamo. Using a panoply of sources from international law, domestic law, and military law, I expect the military defense attorneys to argue that federal courts should have such jurisdiction.

(2) In order to facilitate the detainees' petition for habeas corpus, they must have access to legal counsel. The OMC lawyers will likely argue that the Constitution guarantees the right to counsel, and that it must be observed even at Guantanamo. The OMC lawyers will probably also argue that they are uniquely qualified to mitigate any risks the government is concerned with. As JAG officers, they all have security clearances, and can presumably be trusted to deal with the classified information and security issues inherent in these detainees' petitions. At the same time, these JAG officers can be trusted to serve the needs of their clients -- the detainees. This will likely be a part of the OMC amicus brief as well.

(3) [New] The OMC lawyers will also argue that the Treaty Clause (see Art. VI) of the Constitution compels the United States to follow the letter of the 3rd Geneva Convention -- something which has not been done with the Gitmo prisoners. Setting aside any normative issues about the Gitmo detentions, we have not complied with Art. V of the 3rd GC with respect to having "competent tribunals" adjudicate whether these men are lawful prisoners of war or not. As a historical footnote, we held thousands of such tribunal during Gulf War I -- it's practically a METL task for JAG officers to know how to do 'em. I think this is a pretty solid argument too.

(4) Ultimately, the OMC lawyers will argue that President Bush's order establishing military commissions is unconstitutional. If the order is unconstitutional, then any verdicts given down by military commissions under the order will be invalid, thus exonerating the OMC lawyers' clients. This argument will take a number of forms.

- Initially, the OMC lawyers will argue that this order is an unconstitutional extension of Presidential power under Art. II, and that it infringes on Congressional power under Art. I to "make Rules for the Government and Regulation of the land and naval Forces". I think this is a pretty solid argument, although the Court may cite Rostker v. Goldberg for the proposition that it should stay out of issues between the "political" branches.

- Next, the OMC lawyers will make a more specific argument that the 13 Nov 01 order is unconstitutional because it goes beyond the authorization of Congress in Public Law 107-40 (the post-9/11 joint resolution authorizing force in response to those attacks). It's relatively well settled law that the President does not need a declaration of war to commit military forces, but the OMC lawyers will probably argue that all of the government's precedents (e.g. Quirin and Yamashita) were decided when there actually was a declared state of war.

- Finally, the OMC lawyers will argue that the military commissions usurp the authority of the Art. III courts to hear "...all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties Controversies to which the United States shall be a Party...". The OMC lawyers will argue first that Congress has created military courts to deal with both violations of the UCMJ and violations of the laws of war, and that such courts should be used. In the alternative, the OMC lawyers may argue that the military commissions obviate the power of U.S. federal courts to hear these cases and controversies that would normally fall within their jurisdiction. (But see Johnson v. Eisentrager) And third, the OMC lawyers will argue that the federal courts should have appellate jurisdiction over the verdicts produced by military commissions. This argument will extend to the U.S. Supreme Court, which "In all the other Cases before mentioned . . . shall have appellate Jurisdiction, both as to Law and Fact".

Ironically, this last point puts the OMC lawyers in direct conflict with both the White House and the Solicitor General's office. It puts the OMC in conflict with the White House because the 13 Nov 01 order expressly precludes the possibility of civilian judicial review, by either the federal appellate courts or the U.S. Supreme Court. This last point will also put the OMC lawyers in direct conflict with the Solicitor General's office. In the SG's Al-Odah brief, they argue that the issue of military commissions is not relevant to this case, because the Court is only hearing argument on whether federal courts shall have jurisdiction to hear challenges to the detentions at Gitmo. Footnote 4 of the SG's brief states:
FN4. The petition states only one other claim: that, "[t]o the extent that [the President's Military Order of November 13, 2001 (see C.A. J.A. 22-27)] disallows any challenge to the legality of [Hamdi's] detention by way of habeas corpus, the Order and its enforcement constitute an unlawful suspension of the Writ." Id. at 13 (Pet. ¶ 25). As respondents have explained (see id. at 47), that claim is without merit. By its terms, the President's Military Order (§ 2(a)) applies only to non-citizens whom the President determines "in writing" to be subject to the Order. The Military Order accordingly does not apply to a presumed American citizen such as Hamdi, and in any event the President has not made any determination that Hamdi is subject to the Order.
The SG is trying to take military commissions off the table in the Al-Odah case, and they'll probably be successful because the Supreme Court only granted cert on the narrow issue of federal jurisdiction. But that doesn't mean that amicus curae are not going to raise this issue in their briefs. It's just a little odd for the left arm of the Executive Branch (trial defense lawyers in OMC) to directly dispute the legal argument of the right arm of the Executive Branch (the SG's office).

Clearly, the OMC lawyers are looking to shape the battlefield for future legal battles. They are laying the groundwork for future appeals on behalf of their future clients -- the detainees at Gitmo who may eventually be charged and convicted before military commissions. After these convictions, the OMC lawyers will undoubtedly try every possible avenue of appeal, to include the military courts of appeals and the federal court system. Ultimately, the OMC lawyers will take their arguments to the Supreme Court if any of their clients are convicted. This case offers them a chance to test their arguments, and to possibly elicit some positive caselaw from the Court in its Al-Odah decision. Not a bad strategy.

Tuesday, December 9, 2003

Payback: U.S. bars Russian, French and German companies from Iraq contracts

The New York Times reports this afternoon that the Pentagon has barred companies from France, Germany and Russia from competing for $18.6 billion in post-war contracts in Iraq. The stated reason is that this is necessary for "protection of the essential security interests of the United States". The implicit reason is payback for these countries' opposition to the war in the UN and NATO. On the one hand, I see a lot of legitimacy in restricting the transfer of American taxpayer money to countries we don't agree with. On the other hand, this may make the process of rebuilding Iraq more expensive, to the extent that we exclude companies from these countries that could do it for less. We'll see how this story develops.

U.S. Army discharges two Jewish soldiers
A case of religious discrimination, or maintaining good order and discipline?

David Bernstein at the Volokh Conspiracy passed on an AP story this weekend about two (presumably Orthodox or Conservative) Jewish soldiers who were discharged from the U.S. Army after they disobeyed an order to attend class, and instead decided to attend Yom Kippur services near Fort Huachuca, Arizona.
The two were discharged after disobeying orders by skipping
class so they could attend services for Yom Kippur, the holiest day of the Jewish year.

"Our religion itself says if you are saving somebody's life, you have to [cease the observance]," said Refael Chaiken, a veteran of the Israel Defense Forces, who holds dual citizenship. "No one can convince us not going to class, when you can make it up, falls under that category."

The Army calls the November 14 discharges a simple matter.

"They didn't meet the requirements of the course," said Tanja Linton, a spokeswoman at Fort Huachuca, Arizona, where the Chaikens were
training. "You have to meet the requirements of the course. We really just don't see the story here."

She said the Army acted within its regulation on religious practices, which says it will accomodate religious practices "unless accommodation will have an adverse impact on unit readiness, individual readiness, unit cohesion, morale, discipline, safety, and/or health."
Analysis: David thinks this discharge was "either sheer stupidity or maliciousness on the part of the couple's superiors, made worse by the urgent need for the couple's skills", and Patrick Belton at Oxblog calls it "silly, and stupid". I strongly disagree, and think Matt Rustler has it right when he says this was the right thing to do in the situation:
Yes, Arabic-speaking interrogators are desperately needed, and I'm sure the couple's superiors are keenly aware of this (since they are presumably under great pressure to produce Arabic-speaking interrogators). On the other hand, the military takes a very dim view of disobedience of orders--and with very good reason. It's typically hard enough to get things done properly when everyone is actively trying to obey orders, without the added complication of subordinates feeling free to do as they will despite direct orders to the contrary.

* * *
It may be that the Army concluded, on the basis of this incident and/or information that we're not yet privy to, that the Chaikens' religious beliefs were simply not compatible with military service.
Quite right. First of all, you have to read between the lines of this story. The Army didn't just discharge these two soldiers for missing class, although that would be enough because you can't disobey orders in the military and get away with it. These soldiers failed to meet the standards of the course. I've been around the Army long enough to know that if these were high-quality soldiers, they might have been dealt with differently. Instead, the Army used its codewords to indicate there were other issues with these soldiers besides their failure to report for duty on Yom Kippur.

But I agree with Matt -- you simply can't have an effective military if everyone gets to decide which orders are important enough to obey and which ones aren't. This is especially true in a heterogenous force like the American military, which takes in soldiers from every race and faith in the American population. That's exactly what the Chaikens decided to do in this case. Refael said "No one can convince us not going to class, when you can make it up, falls under that category." Oh really? So now you're going to decide what orders are important enough to follow? What if someone tells you not to wear a beard because it interferes with the fit of your protective mask? Or that your yarmulke has to go because it's a hazard on the flight line? Or that you can't reveal your religion during a particular mission because it could get you killed? Are you going to apply the same religious litmus test to those orders too, Mr. Chaiken?

Things may be different in the IDF, where the overwhelming majority of the force is Jewish, and where a different tradition of church/state separation exists. But the Chaikens aren't in the IDF anymore -- they were trying to be a part of the American Army. And one of the fundamental parts of a disciplined, professional, all-volunteer force is the willingness of its soldiers to follow orders. We don't want robots for soldiers, but we don't want junior enlisted soldiers who deconstruct and question every order like the Chaikens did with this one.

And to borrow from one of my platoon sergeants, the military isn't like Burger King -- you don't get to have it your way. Military service is not about "me" and what "I" am entitled to -- it's about what "we" can collectively accomplish as a unit. These soldiers may have had serious issues with this ethos, as exemplified by this incident. These soldiers were unwilling to subordinate their religious practices to the needs of the Army, and they were discharged because they knowingly and willingly disobeyed an order in pursuit of their personal welfare. Selfless service is a time-honored principle of military service, and I'm not sure the Chaikens get it.

The AP article quotes a retired Marine colonel who served in Vietnam who said he was able to leave his artillery battery to go to Jewish services. Maybe... though I question a combat commander who leaves his troops in battle to take care of himself. As a Jew who's served recently as a U.S. Army officer, I will tell you that's sometimes not an option. I often missed important religious services in Korea, Texas and the Mojave Desert as a platoon leader because I couldn't leave my platoon to attend synagogue. Our rabbi in Korea (a great American) made a special point of contacting Jewish soldiers in the 2nd Infantry Division who couldn't attend services to reach out to them, because he knew that their mission was often more important than their attendance at services. The mission always has to come first in the military, and mission accomplishment often requires some amount of sacrifice from every soldier. Whether it's missing Easter services, your child's first birthday, or some other key event in your life, this is the life of a soldier. It's naive to think that you can have it your way, and that if you don't get your way in the Army, you can simply disobey orders to do what you want.

Bottom Line: I don't think the Chaikens fully understood the concepts of sacrifice and selfless service as they apply to military service. If I were their commander, I would've disciplined them too for deciding that their religious needs were more important than their orders. Better to figure that out about these two soldiers now, in a training environment, than to learn they would disobey orders when you're in combat.

Coda: And if you think that the First Amendment should dictate another outcome, see Goldman v. Weinberger, 475 U.S. 503 (1986), where the Supreme Court held that the First Amendment did not prohibit a regulation proscribing the wear of the yarmulke by Air Force personnel.

A new home for a great weblog -- check out Robert Tagorda's new and improved Priorities & Frivolities at its new address. One more "professional" blogger makes the leap from Blogger... who will be next?

Thoughts on 'broken windows' and law enforcement

Mark Kleiman, a noted sociologist in his own right, has some great thoughts on his weblog about the theory of "broken windows", which came up at a recent forum on public safety hosted by the Milken Institute. Apparently, the forum included Prof. James Q. Wilson and George Kelling, who are widely credited with developing the idea back in the late 1970s and early 1980s as a model of crime control and order maintenance. Mark offers this insight into the theory, and how it is often misspun by public safety professionals and pundits today:
There have always been two versions of the "broken windows" idea, but the two are often confused. Both are arguments for cracking down on relatively minor offenses as ways of reducing major crime, but the proposed mechanisms are entirely distinct. (Both might be at work, but neither implies the other.)

Broken Windows (A), the source of the original metaphor, is a fundamentally a "signalling" idea. It holds that minor crimes, and even conditions that are not themselves criminal, convey to people who might commit major offenses the implicit message that the territory in question is "unowned" and out of control, and therefore a safe place to commit a crime.

Wilson said frankly that the evidence for Broken Windows (A) as a crime control strategy was suggestive but less than convincing. (It's probably much more effective in some circumstances than others.) He also said that the justification of Broken Windows (A) policies didn't rest on its efficacy in controlling major crime, but in the fact that if you talk to people in disordered neighborhoods, order maintenance is what they want. Broken Windows (A), he said, contributes to "public happiness," whic is a legitimate purpose of democratic government. If it also controls major crime, that's a bonus.

Broken Windows (B), while it supports the same policy, is a completely different argument. It rests on a demonstrable fact about offenders rather than a plausible, but still speculative, idea about situations. Ever since Jan and Marcia Chaiken's Varieties of Criminal Behavior, we've known that people who commit a lot of serious crime are usually (not always) people who commit a lot of crime, period. Most people who -- to use Kelling's examples -- jump subway turnstiles or park in handicapped zones -- aren't armed robbers, but arresting a random sample of fare-beaters or handicapped-zone-parkers will likely yield a disproportionate number of armed robbers.

DOJ responds to TRAC report on anti-terrorism prosecutions

The Washingon Times reports this morning on the Justice Department's stern response to the report issued on American anti-terrorism prosecutions by the Transactional Records Access Clearinghouse at Syracuse University. The DOJ response matches my analysis, which was that federal prosecutors have been forced to stretch the anti-terrorism laws (e.g. 18 U.S.C. 2339b) beyond what their evidence can handle, and that aggressive prosecution was not necessarily leading to high conviction rates or high sentences. Here's what the DOJ spokesman had to say:
"The Department of Justice's top priority is the prevention of future terrorist attacks," said spokesman Mark Corallo. "Since September 11, this work has included not only the prosecution of overt terrorist acts, but also of cases to prevent potential terrorist activity."

* * *
Mr. Corallo questioned TRAC's methodology and analysis, saying the report "ignores the value of early disruption of potential terrorist acts by proactive prosecution of terrorism-related targets on less serious charges."
Analysis: Exactly right. Note what the spokesman says in the first comment -- that the Justice Department's top priority is the prevention of terrorist attacks -- not the arrest, prosecution and conviction of terrorists after the fact. This is a paradigm shift from before Sept. 11, when the most important DOJ function (going all the way back to J. Edgar Hoover) was to catch and convict the bad guys. Today's Justice Department would rather deter future terrorist attacks through aggressive (and maybe not successful) prosecutions than achieve a high conviction rate.

Similarly, the DOJ's second comment supports this interpretation. Even if federal prosecutors aren't convicting terrorists in every case they bring, they are possibly deterring certain kinds of behavior which is instrumental to global networked terrorism -- like the contribution of money to foreign terrorist organizations. The DoJ is less concerned with its conviction rates than it is with preventing future attacks, and I think that's a good thing. The TRAC report doesn't highly any DOJ failure so much as it highlights a disconnect between the old model of criminal law enforcement and the new face of anti-terrorism enforcement.

The TRAC report doesn't really acknowledge this paradigm shift, nor does it figure out any way to measure the value added by unsuccessful anti-terrorism prosecutions. I'm not sure that you can measure deterrence, in any event, for a number of conceptual and methodological reasons. But this is one more instance where the old paradigm of criminal law enforcement may not be applicable anymore in the new age of global networked terrorism.

Monday, December 8, 2003

An inauspicious start to the trial of Captain Yee

The New York Times reports tonight on the start of Art. 32 proceedings against CPT James Yee, the Muslim chaplain on duty at Guantanamo who was initially accused of capital espionage, only to see those charges reduced to mishandling of classified material, adultery and storage of porn on his Army laptop. Before the trial started, the prosecution possibly mishandled classified materials themselves, handing over supposedly classified materials to Yee's civilian attorney who's still waiting for his clearance. Now, the Art. 32 hearing has gotten underway, and a military judge will decide at the end of this hearing whether to recommend court martial or not for CPT Yee.
In a spare and harshly lit military courtroom at this Army base, prosecutors began their case by calling the naval officer, Lt. Karyn Wallace, who said she had been a neighbor of Captain Yee's when they lived in the bachelor officer quarters at the Guant�namo Bay naval base in Cuba.

Under precise questioning from a prosecutor and the military judge, Lt. Wallace recounted how she and Captain Yee, a Muslim chaplain for the Army, went from being buddies to having an intimate relationship in the late summer, both at Guant�namo and in Orlando, Fla., where they took leave together.

* * *
Captain Yee was arrested on Sept. 10 at the Jacksonville Naval Air Station in Florida on suspicion of espionage after customs inspectors said his luggage contained papers that they thought were suspicious and possibly contained classified information.

Captain Yee was charged with an offense far less serious than espionage � mishandling classified information � and was held in solitary confinement in a naval brig for three months while the military conducted an investigation. When that inquiry concluded last month and he was released, the military's only new charges involved keeping pornography on his government computer and having an extramarital affair, both violations of the military code of justice.

The military does not contend that either of those charges are related to any security breaches but that they were violations discovered in the course of the investigation. But Captain Yee's civilian lawyer, Eugene R. Fidell, has said the charges were vindictively added as part of an effort to cover up the military's mistake and initial overreaction.
Analysis: There's something to be said for the defense in this case. First off, it looks like the initial reactions (including mine) to this case were wildly off the mark, inasmuch as they suspected Yee of actually aiding the enemy and committing espionage. Those are very serious charges, and they appear to have been groundless in Yee's case. (The jury's still out in the other Gitmo cases, but I don't think they will reveal much either.) Second, I think the defense has it right when they say the prosecution is going over Yee for the same mistake it made itself. Mishandling classified materials is no laughing matter, but lots of people screw that up in the military all the time and they usually get an administrative slap on the wrist. It doesn't help that the prosecution screwed up something that is so closely related to the charge the defendant faces here.

Similarly, storing porn on a government computer is usually dealt with administratively. Adultery is a serious charge, but it's also dealt with administratively in a lot of cases -- either informally or through career-ending letters of reprimand and non-judicial punishment. Commanders generally use their discretion to deal with such offenses at their level.

However, the use of those measures for these charges is discretionary -- not mandatory. In this case, the Army appears to be throwing the book at CPT Yee. Why? For at least three reasons. First, he's a commissioned officer of the United States Army, and officers are supposed to be held to a higher standard of conduct than enlisted personnel. CPT Yee doesn't have the excuse of being a direct commissioned chaplain with little military experience; he's a West Point graduate and Gulf War I veteran. He should know better. Second, CPT Yee is a Muslim chaplain who the Army relies on to set the moral tone within the force. It cannot tolerate moral turpitude from a chaplain, nor should it. Third, CPT Yee committed his offenses in a very sensitive place. There are two places you don't want to screw up in the Army -- too close to the flagpole (e.g. the Pentagon), and on a high-visibility mission. CPT Yee screwed up in a place that's regarded as critical by the SecDef and others at the top of the food chain.

My prediction: the Art. 32 officer will recommend a court martial for CPT Yee, and the convening authority will probably decide to have one for him. In the end, the politics of this case won't matter much. CPT Yee's case will go to a military jury composed of other military officers, and they will decide the case on the facts and the law. Military juries aren't known for nullification or other displays of irrational exuberance. I can't imagine a military jury not finding him guilty... but all bets are off in court.

Study finds U.S. terror sentences to be brief
Prosecutorial discretion makes a big difference too

The Los Angeles Times reports this morning on an interesting study by the Transactional Records Access Clearinghouse at Syracuse University on the terrorism and anti-terrorism prosecutions since Sept. 11, and the accompanying sentences for those prosecutions. In a nutshell, the prosecutions have been quite numerous, but the average sentence is quite small, leading some to question whether many of these prosecutions were really as important as they were trumpeted to be. Here's an excerpt from the study:
In the two years since 9/11/01, federal investigators recommended the prosecution of more than 6,400 individuals who the government concluded had either committed terrorist acts or who were targeted on the grounds that charging them with some crime might "prevent or disrupt potential or actual terrorist threats."

On the basis of these recommendations, as of September 30, 2003, the government had in one way or another completed the processing of 2,681 individuals who had been subject to these investigative referrals. An analysis of case-by-case Justice Department data obtained by the Transactional Records Access Clearinghouse (TRAC), however, further showed that of the convicted only five have so far been sentenced to twenty years or more in prison and that for those categorized as international terrorists the median sentence ?— half got more, half got less ?— was 14 days.
This is all very interesting, and it should provide great material for further political and academic debate. But check out this section on the actual effectiveness of America's legal fight against terrorism:
Measuring the effectiveness of any enforcement effort is difficult. This is partly because there is no way to count the events that were prevented from happening by alert policing and strong locks ?— the bank robberies that were not attempted, the drug shipments that were not dispatched, the stock swindles that did not go forward. For terrorism ?— where the government's mission is nothing less than to "protect the American people" ?— assessing what it prevented is even more difficult.

It also should be recalled that while the Bush Administration has indeed recommended the prosecution of a large number of individuals who it said were involved in activities that fell into the terrorist or anti-terrorist categories, the government's prevention efforts involve at least four other broad kinds of work that in the main cannot be judged by such factors as the number of criminal convictions. The government, for example, also is responsible for guarding the borders, for taking steps to prevent the hijacking or bombing of airlines, for collecting intelligence about what the terrorists might be planning to do in the future, and for developing improved methods for preventing terrorists from disrupting the nation's electrical, communication and other networks.

One popular measure of enforcement effectiveness, however, has always involved a consideration of the sentences that have resulted from government prosecutions. In the terrorism area, as noted above, the data indicate that by this measure the government effort does not seem particularly impressive.

When it comes to judging the performance of the investigative agencies a second and less well known measure is available: the reasons the assistant U.S. attorneys give when they decide a particular investigation is not worth prosecuting. Six out of every ten terrorism referrals and three out of every ten anti-terrorism referrals that have been acted on, were declined by U.S. Attorneys. (See figure 8.) This amounts to 1,048 terrorism and 506 anti-terrorism referrals that were declined.

For these terrorism and anti-terrorism referrals made since 9/11/2001 that were declined, the Justice Department data show that more than a third of them (34.9%) were rejected because the prosecutors decided they lacked evidence of criminal intent, or that there was minimal federal interest or that "no federal offense was evident." Another substantial number of referrals (14.9%) were declined because they were backed up by "weak or insufficient admissible evidence" (see figure 9).

Arguably, terrorism enforcement is now the single most important challenge facing the Justice Department. And the fact that federal prosecutors have deemed just under half of these referrals (49.8%) unsuitable is disturbing. But very tough questions must be explored before a final judgment is rendered. Are federal prosecutors declining to bring charges because collecting evidence in these particular cases is so difficult? Or does the large number of negative judgments by the prosecutors indicate that the investigators are not doing a good job?
Analysis: Honestly, there's too much in this study for me to analyze right now, and I think that anyone interested in terrorism and the law ought to read this study for him or herself. However, I would like to point out one thing that I think is very important here.

Since Sept. 11, the government has pursued a legal strategy against terrorism which assumes a certain operational paradigm about Al Qaeda. It implicitly assumes the existence of a global terror network, as described by experts like Peter Bergen and Rohan Gunaratna, and that this global terror network is dependent on the "little fish" inside the United States who facilitate immigration, money transfer, and other logistical matters necessary for terrorist operations. To date, the Justice Department's strategy has mostly focused on these "little fish" as the key to unraveling Al Qaeda's global capability, and as the way to finding any actual operational terrorists inside the United States.

Collectively, I think that most Americans (myself included) assume this strategy is working. After all, we haven't had another major attack on U.S. soil since Sept. 11, notwithstanding the anthrax attacks. The terrorists appear to be directing their attention at soft U.S.-linked targets overseas because of our robust law enforcement efforts at home. Indeed, the strategy may be working. It's very hard to know if an anti-terrorism strategy is working, because your best metric of success is the absence of future attacks.

However, the TRAC study makes clear that the American legal strategy against terrorism has an Achilles' heel too. Put simply, nuisance prosecutions or aggressive prosecutions for terrorism-related charges (e.g. 18 U.S.C. 2339b) cannot work in the absence of evidence that will stand in court. You can't pursue suspected terrorists on the basis of mere suspicion, or shadowy intelligence, perhaps the way you could on the battlefield. In the federal court systems, these prosecutions must be based on more. And to the extent that we have aggressively pursued suspects around the country on something less than evidence beyond a reasonable doubt of guilt, then we have run into trouble.

Generally speaking, the Justice Department's front-line prosecutors have done the right thing in these cases by refusing to charge where they lacked sufficient evidence. But that only reveals a larger problem: there is this gap of cases where we think we know the person is a terrorist (or terrorist supporter), but our law enforcement tools can't be brought to bear on that person. What should we do? Should we prosecute them anyway? Detain them as a "materiel witness"? Detain then as an enemy combatant? Monitor them with foreign-intelligence surveillance on the basis of something less than probable cause? Or something else? Our old, tried-and-true system of prosecution may not be the most effective tool for dealing with terrorism. I'm not sure there's a better option out there, though.

Sunday, December 7, 2003

Measuring success in Iraq

Vernon Loeb, one of the Washington Post's defense correspondents, asked four senior American officers in Iraq a rather simple question: "[W]hy they thought they were winning, and what they used as measures of success?" The answers appeared today in the Outlook section of The Post, and reveal an impressive level of sophistication from America's commanders in the field. They understand the breadth and depth of the problem -- perhaps better than their boss, who publicly wondered about how to measure success in his now infamous memorandum.

Here's what one commander had to say:
From Brig. Gen. Mark Hertling, assistant commander, 1st Armored Division:

Your question is a good one. It's not as if we can start counting enemy tanks and determine how many the enemy has left after a major tank-on-tank battle or results of BDA [bomb damage assessment] from Air Support. That's the challenge in an insurgency; it's part of Sun Tzu's dictum of knowing the enemy. So we have to gear metrics toward other means.

On a daily basis, we track frequency and types of attacks -- IEDs, RPGs [rocket-propelled grenades], small arms, mortars, rockets -- and their frequency and locations. . . .

Since Operation Iron Hammer, we have seen a drop-off in attacks against us, and we continue to see a decrease in crime (especially as we put more Iraqi Police and ICDC [Iraqi Civil Defense Corps] on the streets). We are seeing [an] upswing in the perception of U.S. forces' action in the Arab media . . . and a significant increase in tips from the locals of Baghdad, and an extremely significant increase in the turn-in of unlawful weapons. . . .

All these things may be due to the enemy lying low to see what we're doing; it might be due to us having significantly hurt the enemy during the operations; it could be that the thugs and criminals being paid to conduct the attacks are not up for fighting anymore. And, it might also mean that the average citizen of Baghdad is getting sick of fighting, and that same average citizen is better supporting the coalition (which we believe, from our data). Or, it might mean the enemy is gearing up for another offensive. And that's why it's important that we keep the pressure on with offensive operations and civil affairs actions, and working [with] the good people of Baghdad. . . .