Saturday, December 20, 2003

Happy Holidays
-- Intel Dump will take a break from publishing over the next week to enjoy the holiday season with friends and loved ones. Wherever you're at, I hope you enjoy a happy and healthy holiday season too.

Friday, December 19, 2003

A Constitutional clash of epic proportions

Courts, Congress, President battle over power to designate enemy combatants

Yesterday, the Executive Branch lost two key battles in two key courts in its legal war on terrorism. In the first case, Padilla v. Rumsfeld, the 2nd Circuit Court of Appeals effectively told the Administration that it could not hold Jose Padilla as an "unlawful enemy combatant" -- at that it either must charge him in civilian court or release him. In the second case, Gherebi v. Bush, the 9th Circuit Court of Appeals held that federal courts may exercise jurisdiction over detention challenges from prisoners at Guantanamo Bay. Both are separate issues, but together, the impact of this is to seriously impair the Bush Administration's method of detaining and holding prisoners in the war on terrorism. Today, Jess Bravin has a good roundup of the matter in the Wall Street Journal (subscription required), as does Charles Lane in the Washington Post. Here's an excerpt from the WSJ story:
The administration had been scrambling to soften its policy of holding detainees suspected of terrorism indefinitely while denying contact with lawyers or other ordinary aspects of American due process. In the face of mounting criticism at home and abroad, the Defense Department has given three detainees access to lawyers this month, the latest just Thursday as part of proceeding toward a military trial. The U.S. also has reassured some allies that it won't pursue the death penalty against detainees, and told others that those nations may soon take custody of their citizens being held incommunicado at the U.S. detention center in Guantanamo Bay, Cuba.

The U.S. moves signal growing recognition that its treatment of such prisoners presents a deepening political and legal problem. But Thursday's sharply worded rulings were likely to put the White House further on the defensive. In two separate 2-1 decisions, appeals-court panels in New York and San Francisco called on the U.S. to grant additional rights to suspects it has been holding indefinitely.

* * *
The latest rulings join the rush of antiterrorism cases approaching the Supreme Court, which more than two years after the attacks of Sept. 11, 2001, has yet to decide where traditional civil liberties must give way to claims of national security. The high court already has agreed to hear an appeal of the District of Columbia Circuit's Guantanamo decision. And it is considering whether to take an appeal for Yaser Esam Hamdi, a U.S.-born man whose detention as an "enemy combatant" was upheld by the Fourth Circuit Court of Appeals in Richmond, Va.

* * *
The Bush administration criticized the rulings by the appellate courts and vowed to defend its policies. Scott McClellan, the White House spokesman, called the Second Circuit decision "flawed" and said President Bush had instructed government lawyers to seek a stay pending an appeal. The government can ask for rehearings before the full circuit courts or seek review by the Supreme Court.

* * *
Legal experts were split on how the issue would fare at the Supreme Court.

Philip Heymann, a professor at the Harvard Law School, called the policy of detaining Americans arrested in the U.S. as enemy combatants "the single most dangerous and needless power claimed by the administration." But he noted the Second Circuit addressed only the more limited question of separation of powers among branches of government, creating "the hardest way possible for the executive to win at the Supreme Court."

John Yoo, a former Justice Department official who helped design the Bush administration's detention policy and is a law professor at the University of California, Berkeley, said the majority on that panel erred by trying "to turn the clock back to Sept. 10, 2001. They think the best way to handle terrorism is the way we used to, as simple crime."
Analysis: These cases are as big as their billing -- they change the legal environment for the way the administration must deal with suspected terrorists and enemy combatants. Indeed, I now have to alter my syllabus for my Law & Terrorism class, because these cases represent such a fundamental reversal from what had been decided at the U.S. District Court level. In essence, the two appeals courts have sharply curtained two aspects of presidential power here -- the power to designate and detain enemy combatants, and the power to hold them in a place where Art. III courts cannot exercise jurisdiction. There has not been as clear of a challenge to executive authority from the courts since 1952, when the Supreme Court overruled then-President Truman's decision to seize steel mills during the Korean War.

The Administration's response has been somewhat predictable -- to criticize both the Gherebi and Padilla rulings, and to say that it will fight both decisions in court. Towards this end, the Justice Department has asked the 2nd Circuit to stay its opinion. (The 9th Circuit already did stay its opinion in anticipation of the Supreme Court's decision in Al-Odah v. United States.) The Justice Department's statement in the Padilla case reflects its likely legal argument to an en banc panel of the 2nd Circuit, and eventually to the Supreme Court:
In times of war, the President must have the authority to act when an individual associated with our nation's enemies enters our country to endanger American lives. As U.S. Circuit Judge Richard C. Wesley said in dissent, `[T]he President, as Commander in Chief, has inherent authority to thwart acts of belligerency on U.S. soil that would cause harm to U.S. citizens, and, in this case, Congress through the Joint Resolution specifically and directly authorized the President to take the actions herein contested.... Congress could not have intended to limit the President's authority to only those al Qaeda operatives who actually planned or took part in 9-11.... Clearly, Congress recognized that al Qaeda and those who now do its bidding are a continuing threat to the United States.
Legal Analysis: There are lots of ways for the court to look at this. It appears from the two orders that this is shaping up as a fight over executive power -- and whether the President may:
- Designate American citizens (and non-citizens) as enemy combatants;
- Detain enemy combatants pursuant to the laws of war, without legal process;
- Deny access to counsel to American citizens held as enemy combatants
- Deny the Art. III courts any sort of judicial review over these decisions; and
- Assert these powers on the basis of Public Law 107-40, the post-9/11 act of Congress authorizing force in response to Al Qaeda's attacks.

There really isn't a lot of precedent out there on this issue. Youngstown, a 50-year-old case, is the Supreme Court's best analysis of executive branch power. Most scholars look to Justice Jackson's influential concurrence in this case for the test of whether an executive action is Constitutional, which Justice Jackson stated this way [See 343 U.S. at 636-38]:
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. 2 In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
So the legal question in this case is whether the President is acting pursuant to a grant of power from Congress (or the Constitutional), in the absence of such authorization, or contrary to an act of Congress. The degree of deference from the Court will depend on the category in which the President's action falls. Obviously, the President contends that he is acting pursuant to P.L. 107-40, and his Art. II authority as Commander-in-Chief, and therefore his actions fall within Justice Jackson's first category. Thus, they deserve deference from the courts. The 2nd Circuit held yesterday that in fact, the President's actions here run afoul of the 1971 Non-Detention Act (codified at 18 U.S.C. 4001), which says that citizens may not be "imprisoned or otherwise detained ... except pursuant to an Act of Congress." Therefore, the President's actions are within Justice Jackson's third category, and thus unconstitutional.

What's the real answer here? I don't know. Legal scholars who are much smarter than me (e.g. David Cole, Laurence Tribe, Kathleen Sullivan, John Yoo, Ruth Wedgwood, and others) have been debating this issue in the law reviews for the past two years. There are good arguments on both sides, and it's pretty close to an indeterminate problem in my opinion. I think the Supreme Court will ultimately decide against the White House because it wants to preserve the institutional balance of powers between three branches. In other words, letting the White House claim all these powers (particularly the absence of judicial review) would let the President expand his power too much, and the courts stand to prevent either political branch from taking that much power. But we'll see what happens when the Supreme Court hears Al-Odah early next year, and if it takes either Padilla or Gherebi on appeal.

Update I: Eugene Volokh, a Constitutional Law expert and law professor at UCLA, analyzes the Padilla v. Rumsfeld opinion on his weblog. Eugene predicts that the Supreme Court will take the case, and that it will side with the dissenter who argued that the Bush Administration's actions are Constitutional because the President had authorization to use force against Al Qaeda pursuant to P.L. 107-40. Eugene's more optimistic than I am about the outcome of this case for the Executive Branch. But given his experience in the field, and clerkship for the U.S. Supreme Court, I'd put money on his prediction before mine.

Update II: Eric Muller, another smart law professor, has some more thoughts on the issue here. He poses an interesting hypothetical: what if Congress had authorized the President to use "military force" against the Medellin drug cartel? Could the President then detain drug lords, drug couriers, drug dealers, and even drug users as "unlawful enemy combatants"? That's the kind of tough hypothetical which the Solicitor General will have to deal with in the Supreme Court, and I'm not sure where to draw the line between problems of law and problems of war. At least, the budding lawyer in me doesn't know where to draw the line -- the soldier in me things in binary terms of shoot/no-shoot.

Update III: Also see this comment on the decisions from Unlearned Hand at En Banc, a group weblog of law students from around the country.

Thursday, December 18, 2003

The intel analysts who tracked down Saddam

Today's Wall Street Journal (subsciption required) has a great article on the two soldiers from Alpha Company, 104th Military Intelligence Battalion, who put together the pieces of the puzzle to find Saddam. I'm proud as hell of these soldiers, because they work in my old brigade command post in the 1st "Raider" Brigade, 4ID. I worked closely with A/104 MI, and thought the world of their soldiers, who were some of the smartest that I met while I was in the Army. This story shows just how smart, creative, and innovative young soldiers can be when given a little bit of guidance and a lot of room to work.
TIKRIT, Iraq -- The capture of Saddam Hussein began with four names Maj. Stan Murphy scribbled on three pieces of paper and ripped from a small green notebook.

The 41-year-old intelligence officer with the First Brigade of the Fourth Infantry Division knew these names were just a small part of a much larger web of names and families likely to be hiding Mr. Hussein.

He handed the names to two junior U.S. military-intelligence analysts in Tikrit: Lt. Angela Santana, 31, and Cpl. Harold Engstrom, 36, both with Alpha Company, 104th Military Intelligence Battalion. The unit's job in Tikrit was to support the Fourth Infantry Division with intelligence data, helping the troops break up the resistance cells threatening the postwar stability of Iraq -- and ultimately to arrest Mr. Hussein.

The two officers say Maj. Murphy's orders to them were: "Figure it out, draw the lines, make me a chart and find every crucial person connected to Saddam."

Their first thought: "Is he joking? This is impossible. We can't even pronounce these names," says Lt. Santana.

* * *
The duo read through sheaves of interrogation reports from detainees and interviews with local Iraqis. They plumbed a huge database provided by central military intelligence. Eventually, they created what they nicknamed "Mongo Link," a four page, 46-by-42-inch color-coded chart with their 300 names on it. It was basically a family tree, with Mr. Hussein's picture at the center, and lines connecting his tribal and blood ties to the six main tribes of the Sunni triangle: the Husseins, al-Douris, Hadouthis, Masliyats, Hassans and Harimyths. The military believed members of these clans shielded Saddam for eight months, financed the resistance, and planned assassinations and attacks against Iraqis and coalition forces.

Next to each of the names, Lt. Santana and Cpl. Engstrom scribbled down bits of information they were able to gather about individuals: their ages, home village, spouses and children, where the names came from, whether people on the list were in custody and how they got there.

Lt. Santana and Cpl. Engstrom's chart, the contents of which are classified, eventually came to be known in military circles for its accuracy and has even made its way to the commander of the coalition forces, Gen. Ricardo Sanchez in Baghdad.
Analysis: Awesome stuff. Some might say that these soldiers were just doing their jobs, and they don't deserve any special recognition for that. I think that's bunk. At the very least, CPL Engstrom deserves to be recommended for E-5 (Sergeant), and possibly groomed for future MI work as a warrant officer or commissioned officer. 1LT Santana ought to be recognized as well, with an outstanding OER at a minimum. This is first-rate work, and these soldiers deserve to be recognized. It may not be battlefield heroism in the conventional sense that deserves a medal for valor, but some sort of recognition is in order.

Beyond that, I think this is a testament to so many things about our all-volunteer force. Though you can argue that you often get really smart soldiers (the proverbial guy with a Harvard degree) through conscription, in reality, it's never worked out that way. Conscription-based armies tend to be less educated, less well-trained, and less professional, and the complete opposite of our what our all-volunteer force has become. CPL Engstrom and 1LT Santana demonstrate all that's good about an all-volunteer force, as well as a command climate that lets their initiative and ingenuity flourish. As the Army's first digitized brigade, the Raider Brigade has a proud tradition of letting junior officers and NCOs lead the way with their initiative, and I'm proud to see that tradition carried on by these two soldiers. As Gen. George S. Patton once said: "Never tell people how to do things. Tell them what to do, and they will surprise you with their ingenuity."

Update: The New York Times runs its version of this story today, with appropriate credit to the Wall Street Journal. But unfortunately, Eric Schmitt fails to credit the two junior soldiers with the actual analysis work that led to the capture.
New blog of note: The Decembrist

Last night at the Washington Monthly's holiday party, I learned of an interesting new political weblog. If you're into politics, and you like the weblogs of people like Josh Marshall and Dan Drezner (i.e. smart people who write well about politics), then you'll like The Decembrist by Mark Schmitt. The blog is written from a left-of-center point of view, but the author doesn't hide that, and it doesn't take away anything from the sophistication of Mr. Schmitt's analysis. Check it out.
2nd Circuit overrules Bush Administration on 'enemy combatant'

9th Circuit chimes in too with a ruling of its own agains the White House

The 2nd Circuit Court of Appeals held today that the President lacked the power to designate Jose Padilla as an enemy combatant and hold him indefinitely without access to counsel. The decision is a major reversal for the administration, which had sought to hold Padilla (and future Al Qaeda operatives like him) as something like enemy prisoners of war -- instead of detaining them as defendants in the civilian criminal justice system. (Findlaw.Com has the 2nd Circuit's opinion posted, as well as briefs for Padilla and the government in the case).
Mr. Padilla, a convert to Islam, was arrested last year at O'Hare International Airport near Chicago on his return from Pakistan after extensive travel in the Middle East. Attorney General John Ashcroft drew worldwide attention soon after when he said the government believed that Mr. Padilla, who has a long criminal record as a gang member in Chicago, had been planning to explode a bomb that would use conventional explosives to disperse radioactive particles over a wide area.

Subsequently designated an "enemy combatant" by the government, Mr. Padilla was briefly held in Manhattan before being sent to a Navy brig in Charleston, S.C., where he has been denied access to a lawyer and held incommunicado ever since.

"As this court sits only a short distance from where the World Trade Center once stood, we are as keenly aware as anyone of the threat Al Qaeda poses to our country and of the responsibilities the president and law enforcement officials bear for protecting the nation," Judges Barrington D. Parker Jr. and Rosemary S. Pooler declared today.

"But presidential authority does not exist in a vacuum," two jurists wrote, "and this case involves not whether those responsibilities should be aggressively pursued, but whether the president is obligated, in the circumstances presented here, to share them with Congress."

Alluding to the constitutional import of the Padilla case, the majority wrote: "Where, as here, the president's power as commander in chief of the armed forces and the domestic rule of law intersect, we conclude that clear Congressional authorization is required for detentions of American citizens on American soil."

Today's ruling, which is probably not the final word in the case, does not mean that Mr. Padilla will go free, even if the ruling is sustained on appeal.

The two judges said Defense Secretary Donald H. Rumsfeld should release Mr. Padilla from military custody within 30 days, after which he could be prosecuted in civilian courts or held as a material witness.
Analysis: I'll have time later today to look at this opinion and offer some thoughts. But procedurally, this is not the last word. The government may (and probably will) petition the 2nd Circuit for an en banc review of the matter, and I imagine they'll get it. The government will probably ask the court to stay this order for the duration of that proceeding, lest irreparable harm be done by giving Padilla access to counsel. The 2nd Circuit will probably accede to that request as well. After the full 2nd Circuit hears the case, both parties will have the right to ask the Supreme Court to hear the matter, and they may well do so. So... the final word remains to be written. More to follow.

Update I: In a 2-1 opinion, the 9th Circuit Court of Appeals ruled today that federal courts do have jurisdiction to consider the habeas corpus petitions of detainees at Guantanamo Bay. (Thanks to How Appealing for the heads up) Judge Stephen Reinhardt wrote the opinion, joined by District Judge Milton I. Shadur, who was sitting by designation. A nearly identical issue is currently pending before the U.S. Supreme Court in Al-Odah v. United States, so the 9th Circuit stayed its opinion until a decision in that case. Nonetheless, this is a big reversal of fortune for the executive branch, which won pretty decisively at the District Court level in this case last year.

Update II: December 18 is "Gitmo News Day", in case you haven't heard. The Pentagon assigned a defense attorney to the second detainee at Guantanamo Bay today -- Salim Ahmed Hamdan of Yemen. He will be represented by Navy Lt. Cmdr. Charles Swift, who works for Air Force Col. William Gunn. Though LCDR Swift's paycheck comes from the federal government, his office is walled off from the rest of DODGC/OMC. These guys' OERs depend on how well they defend their clients, and my experience with veteran JAG attorneys has been that they are very good on the defense side of the table because they know the system.

Wednesday, December 17, 2003

Government searches defense attorney's office in Gitmo translator case

The AP reports this morning that Air Force investigators, holding a search warrant from a military judge, searched the offices of an attorney who is representing Airman Ahmad Halabi, charged with misconduct at Guantanamo Bay. The article didn't say exactly what was searched or what was seized, or why the search was executed.
Air Force investigators searched the offices of Halabi's military attorneys Thursday at Vandenberg Air Force Base in California, his civilian attorney, Donald G. Rehkopf Jr., said yesterday. The investigators, who had a military warrant, copied the hard drive of one lawyer's computer, Rehkopf said.

The search raised the possibility that two military defenders, Majs. James Key III and Kim London, could be called as witnesses against Halabi. That could mean they would have to be taken off the case and new defense attorneys would have to start from scratch.

Air Force agents also burst into a room where Halabi was meeting with his attorneys last Wednesday and took hours to return documents and a laptop computer to him when he was taken from a jail at Vandenberg to Travis Air Force Base, Rehkopf said. Travis, also in California, is Halabi's home base, where proceedings against him will be held.

"This conduct by the government is unprecedented and can only be interpreted as a conscious disregard of the attorney-client relationship," Rehkopf said in a statement. He said Halabi's defense team vigorously protested the incidents to the military judge, Col. Barbara G. Brand.
Analysis: This is pretty odd... I'm not sure what to make of it without more information. Mr. Rehkopf is a widely known and respected member of the military justice bar, and he knows the rules of the game pretty well. I doubt that he would expose himself to criminal charges by having classified material he wasn't supposed to have, but at the same time, he's a good advocate who will push the line for his client when necessary. Nonetheless, this doesn't look good for the government, and it doesn't make the military justice system look all that fair either.

Justice Department establishes policy for enemy combatants' access to counsel

The AP reports that the Justice Department has changed tack on its decision to deny "enemy combatants" the right to an attorney. The change comes in the wake of comments from former-DOJ officials Viet Dinh and Michael Chertoff, who said the current policy of denying access to counsel with no possibility of judicial review was "unsustainable" in court.
Three senior Justice Department officials, briefing reporters on condition of anonymity, outlined the policy for the first time and said it is the proper way to balance national security and constitutional protections for people in government custody as part of the war on terror.

One of the officials said the goal never has been to deny counsel, only to delay it until interrogations are finished.

Two U.S. citizens are being held as enemy combatants, Yaser Esam Hamdi and Jose Padilla.

Critics say the policy gives the government too much leeway and treads on the constitutional right of a defendant to be granted quick access to an attorney and the courts. They note the government still is arguing strenuously in federal courts that it has an absolute right to deny access to lawyers for enemy combatants, including U.S. citizens, and that such a decision is not subject to review by judges.

* * *
legal experts say the Bush administration still has not clearly articulated when a suspected terrorist should be tried as a criminal in civilian courts and when that person should be designated an enemy combatant.

"What's needed is a new system of safeguards,'' said Elizabeth Rindskopf Parker, dean of the University of the Pacific law school and former general counsel at the CIA and National Security Agency. "It's not a situation our criminal laws were designed to respond to."
Analysis: Yeah, I think that last point is right. Our criminal justice paradigm is ill-suited for deterring, preventing and responding to terrorism, and that has been made clear by the clash over the "enemy combatant" issue among others. I think the need to detain and interrogate enemy operatives, whether they be battlefield prisoners or clandestine terrorists, is pretty compelling. (For a good articulation of this interest, see this declaration of Cdr. Donald Woolfolk in the Hamdi case.) On the other hand, our Constitution guarantees certain rights to the accused, and it's hard to differentiate between an enemy combatant and a criminal caught on the streets of Chicago.

I have always thought that the White House needed to put forward some system for the management of these issues, and that it should have a little more faith in the Art. III courts. After all, the Art. III courts have basically upheld the executive branch's power to do what it's doing (see, e.g., Hamdi v. Rumsfeld and Padilla v. Bush). The courts have only required some minor accomodations, such as access to counsel in order to prepare a habeas corpus petition, and only then after a period of seclusion and interrogation to accomodate the government's interests.

But even then, holding enemy combatants for an indeterminate length of time is probably "unsustainable" as a policy choice, to use Judge Chertoff's words. Oh sure, the 3rd Geneva Convention allows us to detain enemy POWs for the duration of the conflict. But this war on terrorism is quite unlike the armed conflicts contemplated in 1949 when that document was written. It may last for decades, flaring up and subsiding much like the Cold War. At some point, we ought to develop a system to adjudicate the fate of the individuals we detain. This system may find these people guilty, at which point we continue to hold them. It may find them not guilty of being a combatant, at which point we should release them rather than waste our resources holding them at Gitmo. But regardless of the outcome, it will give them some measure of legal process, and that's a far sight better than where we're at now.

The Administration's proposal is essentially the right thing to do here, but it still contains a lot of discretion. I predict that civil liberties groups will continue to attack this decision to provide counsel because it contains the ambiguous trigger of "when interrogations are finished". To many who embrace the criminal justice paradigm, that's not what the Framers had in mind when they wrote the Sixth Amendment's right to counsel. But I think there has to be some balance here, between the government's compelling interest in interrogating terrorists and its compelling interest in securing Constitutional liberties. What do you think?

Tuesday, December 16, 2003

Is Saddam a POW?

The Pentagon's answer appears to be "yes... sort of". Ordinarily, this would be a no-brainer. But since the start of America's war on terrorism, once-easy definitions like "POW" are now hard. There has been a great deal of equivocation about the Geneva Convention's scope from the Pentagon with respect to the detainees at Guantanamo Bay. In this case, the Pentagon appears to be taking the position from the start that Saddam Hussein qualifies for treatment as a "prisoner of war", but they haven't actually said that he is a prisoner of war for the purposes of the Geneva Convention. [Not to be Clinton-esque, but this is a case where the distinction between "treatment as a POW" and "he is a POW" matters.]
WASHINGTON, Dec. 15, 2003 - Coalition forces are ensuring that former Iraqi dictator Saddam Hussein's Geneva Conventions rights are protected while he is in custody and that he receives "all of the privileges of a prisoner of war," according to the commander of coalition forces in Iraq.

U.S. Army Lt. Gen. Ricardo S. Sanchez said today on the CBS "Early Show" that Saddam "has been talkative" since his capture near Tikrit Dec. 13, and that "he'll respond readily to questions that are asked of him in terms of just normal administrative requirements."

But Sanchez stopped short of saying Saddam is cooperating with coalition forces. "I wouldn't characterize it either way, cooperative or uncooperative," he said. "We still have a long way to go in this process. And at this point, we still have to ensure that we're taking care of him. He's being treated ... according to the Geneva Conventions ... We'll be protecting him."
On second thought, we may not be giving Saddam the legal status of the Geneva Conventions. Note what LTG Sanchez said, as opposed to what the PR sergeant wrote in the story. LTG Sanchez said that "He's being treated ... according to the Geneva Conventions." That's basically what we say about the guys at Guantanamo too -- that they're being given the humanitarian protections of the Geneva Conventions, but not the legal status or protection of being POWs. LTG Sanchez could have said that "Saddam is a POW, and therefore, he'll get all the legal privileges and protections of such." But he didn't.

There is some room for doubt. Art. IV of the Geneva Convention lays out the requirements for qualification as a "prisoner of war". I think there are colorable arguments within this article for why Saddam should or should not be considered a POW. But the issue isn't up to me, and frankly, it isn't up to Secretary Rumsfeld or President Bush. Art. V of the Geneva Convention establishes a procedure for adjudicating whether persons are POWs or not. We conducted thousands of these proceedings during Gulf War I, and we may need to do one now in order to check the formal Geneva Convention box before proceeding to trial. If we don't, Saddam's defense attorneys will attack this pre-trial process as legally insufficient, and possibly as a deprivation of Saddam's rights. (Ironic, isn't it?)

Does any of this matter? No and yes. None of this matters for the interrogation going on right now, because no one is going to tell the U.S. it can't squeeze Saddam for information. Whether hard or soft, international law has serious enforcement problems, and even if the U.S. were violating some international pact, there is simply no way that anyone could force the U.S. to stop interrogating Saddam because it would run so contrary to our national interest. However, it will matter for any eventual trial of Saddam, either by an Iraqi tribunal, international court, or U.S. court. Western law uses procedural mechanisms to ensure substantive justice, and when those procedures aren't followed, the presumption is that justice wasn't done. Despite the irony of observing a deposed dictator's rights, we must do so in order to preserve whatever verdicts are ultimately given down to seal his fate.

Update: Defense Secretary Donald Rumsfeld said some more on this issue today at his press conference in the Pentagon. Depending on your perspective, he either clarified or muddied the matter:
Q. Mr. Secretary, is there any evidence that Saddam Hussein was in any way involved in the current insurgency or attacks against U.S. troops? And if that is the case, would that in any way change his status, prisoner of war status, as far as the United States is concerned? Would the U.S. seek some sort of legal remedy against Saddam Hussein?

SEC. RUMSFELD: I think that there are a whole host of people in countries that have reason to feel they have some standing -- to use the legal word -- with respect to Saddam Hussein and how he might or might not be prosecuted for various things. He is being accorded the protection of a POW, but he's not being legally described as one at this stage. He, clearly, is being treated under the Geneva Convention as -- with the protections of the Geneva Convention, and is being treated humanely.

The lawyers are carefully looking at the question you posed, and it is conceivable that to the extent he was involved in the post-major combat operation terrorist activity that's taken place in the country, that that could, in one way or another, affect charges that could be brought against him.

But it's not for me to get into that. As the president said yesterday, there are a lot of people with interests in this. It will be handled well. And the people who are the proper legal authorities are addressing a whole host of questions, many of which are being asked and discussed in the press, and many of which haven't even been thought of yet.
Hmmm... mysteriouser and mysteriouser. More to follow...

Al Qaeda extends its deadly reach to South Korea

The Los Angeles Times will have an interesting report in Wednesday's paper about indications in South Korea that Al Qaeda has conducted reconnaissance of U.S. targets there for a possible attack. The indications consist of visits by certain persons of interest to certain parts of South Korea.
One of the more worrisome instances involved a Pakistani national who arrived from Manila earlier this year and has since left South Korea, said Hahm Seung Hee, a member of the National Assembly's intelligence committee.

* * *
Hahm said that another suspected operative connected with an Indonesian terror cell tried to enter South Korea this year, but was turned back at the airport because of faulty travel documents. The same man, however, was believed to have had better luck operating in Japan, according to Hahm.

* * *
The U.S. Embassy had no comment. A U.S. official said, however, in a recent interview that the potential for an Al Qaeda attack in South Korea was relatively low because of the country's rigorous internal security, honed by decades of tensions with communist North Korea.

The South Koreans "are probably better than most at keeping this kind of threat at bay," said the official, who spoke on the condition of anonymity.

There are 37,000 U.S. troops stationed in South Korea. Security around American facilities was particularly tightened after Sept. 11, 2001, and again this year with the onset of the war in Iraq.

Diplomats here said that South Korean intelligence has been keeping close tabs on tens of thousands of foreign workers and students here from Muslim countries, many of whom worship at a mosque in Seoul in the same neighborhood of bars and shops catering to American soldiers.
Analysis: I'm pretty familiar with the security situation in Korea, having spent a year there in the 2nd Infantry Division. This article disturbs me, because there are are a large number of U.S. targets in South Korea that a terrorist could attack. That said, most of those are military bases, and they are fairly well protected because of the North Korean threat which is omnipresent in South Korea. So I'm not certain what to make of this story. Some things deserve special mention, however:

- South Korea is home to a startling number of foreigners, including people from every part of Asia. Specifically, I remember large numbers of South Asians (Indians and Pakistanis) in South Korea, ostensibly because of the technology industry, and large numbers of Phillipine persons. Al Qaeda has extensive connections to citizens from the Phillipines and Pakistan, so it's logical to be worried about persons from those countries who are in South Korea to conduct reconnaissance of U.S. targets.

- The South Korean security apparatus is quite good at its job. The North Korean threat looms over the country like a fog, and the security agencies there have unbelievable amounts of power that they use to surveil just about anything and anyone who is suspicious. For the most part, non-Koreans stick out like a sore thumb, and the South Koreans are pretty good at tracking them inside their country. I think it's a pretty good indicator of success that the ROKs were able to detect these Al Qaeda operatives in the reconnaissance phase of their operation.

What's the bottom line??? Two things. First, Americans are targets for Al Qaeda wherever they're at, and our allies are probably targets as well. (See, e.g., the Al Qaeda bombing in Bali of an Australian tourist area) Second, we cannot let ourselves become complacent in the war against terror. Despite our recent success in capturing Saddam, and our continuing efforts to root out terrorists in Afghanistan and rebuild that nation, we have not won this war yet.

The uncertainty about smallpox

Scientific American has an interesting article on the debate in the scientific community over smallpox, its potential for employment as a bio-weapon, and the need for mass vaccination. For a long time, I read only military literature about smallpox, and thought it self-evident that we should initiate a mass vaccination plan for the virus. But I learned from some colleagues at UCLA's that there has been a raging debate over this subject within the medical community, and that no consensus really exists for how to best deal with this threat. The SciAm article has a pretty interesting discussion, and I think it's worth a read.
"Biological terrorism is our future, and smallpox is a serious threat," insists Ken Alibek, who headed the former Soviet Union's biological weapons program. Now vice chairman of Advanced Biosystems, based in Alexandria, Va., Alibek was one of 200 epidemiologists and tropical disease experts who gathered in Geneva last October to discuss how nations should prepare for an outbreak. The U.S. has already outlined its plan--a voluntary regimen that aims to vaccinate a total of 10.5 million people in phases.

Some scientists, however, see little data to support such widespread vaccination. The plan is partly based on mock scenarios and mathematical models that attempt to predict the magnitude of an outbreak. One major problem is that they must use data on smallpox transmission gathered from pre-1977 Africa, where the last smallpox case occurred. The virus might behave completely differently in today?s unvaccinated cosmopolitan societies. And all models rely on assumptions that by their nature are inaccurate.

The most grave outbreak scenario is "Dark Winter," to which U.S. Secretary of Defense Donald H. Rumsfeld has referred a number of times. It predicts that simultaneous attacks in three shopping malls could balloon to as many as one million dead and three million infected.

But many scientists find the scenario too extreme. What is most contentious is the infection rate. Dark Winter assumes that each infected person will transmit the virus to 10 others and even to descendants for several generations. This is not, however, what epidemiologists have observed in the field. Rarely was smallpox transmitted to more than two or three people, if at all, says J. Michael Lane, former director of the smallpox eradication program at the Centers for Disease Control and Prevention, and most were infected by prolonged exposure. What is more, the virus is not transmissible until physical symptoms appear. By that time, Lane states, the person usually feels "so awful" that they are bedridden. And even though the virus may not behave the same way today, Dark Winter assumes that the sick are not effectively isolated, which is "totally unrealistic," he adds.
The Dark Winter exercise to which the article refers is one of the scariest things I've ever read about. It basically wargames the way that a smallpox attack would affect the United States, and ultimately, it predicts that we will fail in responding to this assault. Millions will die, and the basic structure of American society will disappear in the face of smallpox's onslaught. If you want to stay up late worrying about our future, read the AAR slides from this exercise a few times.

But like any exercise, Dark Winter was based on a number of assumptions about the biology of the smallpox virus, as well as the way complex events would interact with each other in the real world. It's impossible to predict, with any real fidelity, how something like a smallpox attack would affect the United States. It's still important to hold exercises in order to develop plans and refine them. But we ought not put too much stock in the exercise's results, which almost by definition, will look somewhat different from reality.

For more on bioterrorism and related subjects, I recommend reading Germs by Judith Miller, Stephen Engelberg, William Broad; Biohazard by Ken Alibek; Biological Weapons: Limiting the Threat, edited by Nobel laureate Joshua Lederberg; Bioterrorism: Guidelines for Medical and Public Health Management, by D.A. Henderson; and The Coming Plague and Betrayal of Trust by Laurie Garrett. This is a subject where you can never know enough...

Saddam's Capture -- a case study in OODA

For months, America has been chasing Saddam Hussein around Iraq in a grand game of cat and mouse. We finally got him, thanks to good intelligence and quick action which was able to exploit that intelligence. Just having one of those is not enough. To win in warfare (or any competitive endeavor), you have to Observer/Orient/Decide/Act faster than your adversary. As this snippet from Eric Schmitt's article in Monday's New York Times illustrates, that's exactly how the U.S. got Saddam.
The operation illustrates a new style of cooperative American warfare. Conventional Army soldiers work alongside members of Task Force 121, a military Special Operations unit that includes Central Intelligence Agency officers. Intelligence agencies that used to zealously guard their secrets now pool their information so troops can act swiftly on a highly perishable tip.

"Saddam moves all the time," said one Bush administration official. "Our ability to locate him is only as good as the most recent intelligence."

Many details of the raid on Saturday night — the precise information that led American forces to his hide-out and Mr. Hussein's movements since his government fell — remained unclear on Sunday. But top military officials here, in Tikrit and in Washington, say the operation that netted Mr. Hussein, labeled High Value Target No. 1 by the military, moved swiftly from "actionable intelligence" to capture.

Military officials said that about 10:50 a.m. Saturday in Iraq, the military command in Baghdad received the crucial information about Mr. Hussein's potential whereabouts.

The mission to capture or kill Mr. Hussein, code-named Operation Red Dawn, fell to the Fourth Division's First Brigade, commanded by Col. James Hickey. No Iraqi forces were involved in the operation, American military officials said.

About 6 p.m., amid darkness, the brigade's forces, including cavalry, engineers, artillery and Apaches, moved toward their targets: two farmhouses in Ad Dwar, a village about nine miles southeast of Tikrit, the heart of Mr. Hussein's ancestral homeland.

Two hours later, the forces raided the farmhouses but did not find Mr. Hussein. So Colonel Hickey ordered nearly two square miles blocked off, and an intensive search began.

Senior Pentagon and military officials said the mission to capture Mr. Hussein followed basic procedures. Conventional forces of the Fourth Division secured the perimeter of the search area while Special Operations forces in Task Force 121 conducted the direct search.

Because the area to be searched was large, it was unclear on Sunday night whether soldiers from the Fourth Division or Task Force 121 had discovered Mr. Hussein's hiding place, an underground chamber near a mud hut and metal lean-to inside a walled compound.

The hut had two small rooms, a bedroom and a rudimentary kitchen. The bedroom was cluttered with new clothes, including T-shirts and socks, some still in their wrappers, leading General Odierno to estimate that Mr. Hussein had been at the site perhaps only an hour or so.

An orange and white taxi was parked next to a sheep pen near the hut. The hut was near the Tigris River, and American forces found several boats nearby that commanders surmised may have been used to bring supplies to Mr. Hussein.

As American forces closed in, two Iraqis in the hut tried to flee, but were caught. American officials said they had not yet been able to identify them or their connection to Mr. Hussein. Mr. Hussein's hide-out was a shaft just wide enough to hold a man. General Odierno said a plastic foam trapdoor covered the mouth of the narrow hole. A rug had been placed on top of that and covered with dirt, bricks and other rubble to try to conceal it. An air vent had been built into the hole.

When troops opened the lid to the hide-out, they found Mr. Hussein alone, looking "bewildered" and "very disoriented," General Odierno said. He had a knife, a pistol and a suitcase containing $750,000 in American $100 bills. He offered no resistance, identified himself and was very quiet, military officials said.
Analysis: This approach is nothing new for anyone who's studied the theories of Col. John Boyd, an Air Force officer who I think is one of the most brilliant men of the 20th Century. Boyd wanted to know why American fighters could consistently beat Russian fighters in the Korean War, despite some the Russian MiG's advantages in speed. What Boyd found was that the American fighter was more maneuverable, thus enabling it to transition from maneuver to maneuver faster than its opponent. Over the course of an air engagement, this meant that the American pilot could gain the upper hand by being one step ahead of his enemy. And with training, he could learn to think faster than his enemy, exploiting the greater maneuverability of the F-86 to best his MiG opponent every time. Boyd called this thinking/maneuver cycle the "OODA loop", for "Observer, Orient, Decide, Act". The OODA loop is perhaps the best theoretical paradigm for understanding decisionmaking at the tactical, operational and strategic level.

In Iraq, Saddam had built a very tight OODA loop for himself. He was able to observer, orient, decide and act faster than the U.S. intelligence and military apparatus chasing him, and for a while, it looked like the mouse might forever evade the cat. But the U.S. organization evolved, and pared down its OODA loop to the bare essentials. It shared intelligence to enable the process, and built a tactical force capable of moving quickly after a decision to attack. On Dec. 13, the result of these changes became clear. Ultimately, American forces caught Saddam because they got inside his OODA loop, and acted before Saddam could react by moving to another hide site.

Sometimes, the media and the military get along

The Washington Post passes along an anecdote about Michael Weisskopf, a Time reporter who was wounded in Iraq by a grenade tossed inside his vehicle. The Army has decided to let Mr. Weisskopf take advantage of its expert medical care at treating these kinds of wounds, and to be admitted to Walter Reed Army Medical Center -- a very unconventional move for someone who's not in uniform. The Army's medical team at Walter Reed is the best in the world when it comes to dealing with combat injuries, such as lost limbs. Here's how it went down:
... Civilians who aren't veterans normally don't get admitted to Walter Reed, but several of Weisskopf's colleagues, friends and family members went to bat for him.

The deal was sealed after his lifelong friend, WTOP commentator Mark Plotkin, contacted D.C. Del. Eleanor Holmes Norton, who called acting Army Secretary Les Brownlee and got the okay. Norton said Weisskopf "acted heroically" in trying to throw a grenade out of the Army Humvee he was in, "and the Army saw it that way, too. The secretary made it clear that he saved the lives of [two] soldiers" who were also in the vehicle.
Many criticized the "embedding" program because they predicted that reporting would become jaundiced by the camaraderie that developed being journalists and soldiers. Maybe... it's only natural to bond when you share dangers like combat. But I'm proud of Mr. Weisskopf, for trying to get rid of the grenade, and for not just being a bystander. I'm also proud of the Army for seeing past its rules to do the right thing.

Trying Saddam --
Which court will hear his case, and what charges will he face?

I have an article which appears in today's edition of Writ, Findlaw.Com's online legal magazine, which discusses the possible forums for trying Saddam Hussein and the likely charges he will face. It's almost certain that Hussein will be tried by the Iraqi Governing Council's tribunal, but it's unclear whether that will be the only trial he faces, or what charges he will face before that body. Also, I think that Iraq may pursue some sort of Truth Commission down the road to learn the fate of those who perished under Saddam.

Update I: The Washington Post reports that Hussein will likely face trial by the spring. Iraqi prosecutors -- generously aided by American advisors -- are rushing to bring together a case that has been years in the making. However, there is some tension between the U.S. and Iraqi authorities, who are most concerned with interrogation and trial respectively.
One of the architects of the tribunal, Salem Chalabi, said political leaders and legal specialists had already begun discussing the best prosecutorial strategy to employ against Hussein. Chalabi said there was growing agreement that Hussein should be charged with perhaps only a dozen specific atrocities in an effort to keep a trial from bogging down. The charges would include the use of chemical weapons against ethnic Kurds in 1988, the execution of prominent Shiite Muslim clerics and the killing of hundreds of Sunni Muslim tribesmen after a coup attempt, he said.

The political leaders and court officials said they would be able to accomplish two key tasks required to start a trial -- constructing a secure detention facility and hiring judges, prosecutors and investigators -- over the next three to four months. "We'll be ready soon," Chalabi said. "We're moving very quickly."

That timetable is significantly faster than American officials had anticipated, increasing the chances of a dispute between Iraqi leaders eager for justice and U.S. intelligence officials, who hope to elicit detailed information from Hussein about weapons of mass destruction, links to international terrorism and the ongoing insurgency.

Depending on Hussein's willingness to talk, intelligence analysts said, interrogations could continue well beyond the spring. The U.S. occupation authority also is reluctant to hand Hussein over to the Iraqis too quickly, wanting to ensure that the new court's staff and detention facilities are ready to weather the international attention that will surround the former president's case.
More to follow...

Update II: The LA Times reports on some of the intel that American interrogators have been able to squeeze out of Saddam. This is interesting stuff, and it will certainly help American forces effectively target the Iraqi insurgency. I find it ironic that Saddam is willing to squeal on his comrades so willingly, but he's clearly not a man of moral courage.
Because interrogators had spent less than 24 hours questioning the deposed Iraqi leader, they had only just begun converting clues gleaned from Hussein into military operations aimed at eliminating insurgent cells, said Army Capt. Aaron Hatok, a spokesman for the 1st Armored Division, which is responsible for American troops in Baghdad.

The circumstances in which Hussein was discovered, in a dirt hole with no means of communication, raised doubts about the extent to which he might have been directing attacks on U.S. troops.

But Brig. Gen. Mark Hertling, commander of the 1st Armored Division, said he believed Hussein was in some way coordinating insurgent cells.

The general, in an e-mail exchange with a Washington-based Los Angeles Times reporter, said the information culled from Hussein and from documents he had with him confirmed several theories American intelligence analysts had already been pursuing.

Hertling said the 1st Infantry will use other newly gathered intelligence "to further connect the dots of cells that operate in Baghdad." He said the next phase will be working with the Iraqi police to hunt down car theft rings in the capital to help restore security there.
Update III: CNN.Com picked up my column from Findlaw.Com, so now it's going to get some more airplay. Now if only they'd ask me to do on-camera commentary...

Update IV: President Bush appears to have made up his mind about Saddam Hussein's guilt, and the appropriate punishment for him. This comes as no surprise, given President Bush's history as governor of Texas and well-known views on capital punishment. But I might expect a bit more diplomacy and discretion from the President, lest we appear too vengeful at this important point in history.
"I think he ought to receive the ultimate penalty ... for what he has done to his people," the president said. "I mean, he is a torturer, a murderer, they had rape rooms. This is a disgusting tyrant who deserves justice, the ultimate justice. But that will be decided not by the president of the United States but by the citizens of Iraq in one form or another."

Monday, December 15, 2003

Justice for enemy combatants?

Viet Dinh, the former assistant attorney general credited with writing the USA PATRIOT Act, has an interesting op-ed in today's Wall Street Journal (subscription required) suggesting that the Bush Administration reconsider its position on the treatment of enemy combatants. Mr. Dinh and Judge Michael Chertoff, another key lawyer in the Bush Administration's legal war on terrorism, recently spoke out against some of the positions taken by the Administration, saying they were "unsustainable". Today's op-ed crystallizes some of those comments, and moves the ball forward by providing a couple of concrete ideas for dealing with these two individuals being held as enemy combatants.
There is room for the administration to move into even safer harbor by providing, after a reasonable period, some procedure for Messrs. Padilla and Hamdi to contest the underlying facts of their detention. It need not be full-dress judicial process. A military hearing to evaluate the information underlying the detention would suffice. The Supreme Court is more likely to defer to an executive judgment when the process by which it is arrived at is capable of inspection.

The developments in the Hamdi and Padilla cases should comfort those who fear executive authority because they indicate that the administration is exercising its discretion responsibly to accommodate changed circumstances. Likewise, those who support executive prerogative should applaud the administration for not pushing the envelope and risking a judicial backlash that would erode presidential authority (remember President Clinton's invocation of the so-called Secret Service privilege?).

The administration's action is especially noteworthy given Congress' silence. After two years of unofficial criticism, especially from members with presidential aspirations, it is time for Congress to contribute its voice -- either to affirm the president's authority or to suggest refinements to administration policy. As Judge Michael Chertoff, former head of the Justice Department's Criminal Division, has suggested, we need to think more systematically about a sustainable architecture for determining when, why and for how long someone may be detained as an enemy combatant.
Update: I always thought the cases of the guys at Guantanamo were somewhat easier than the cases of Hamdi and Padilla. Apparently, they can have operational wrinkles too. A smart reader of mine wrote me with this Agence France Presse report about one of the guys we released from Gitmo. (Hat tip to Winds of Change for getting it first)
Sources in Pakistan and Afghanistan told Time magazine that Mullah Shehzada, who was among 16 Afghans freed from the US base in Cuba, masterminded a jailbreak in Kandahar in October in which 41 captured Taliban burrowed under prison walls with help from bribed guards.

A deputy to Taliban army chief Mullah Fazal Mazloom before his capture during the late 2001 Afghanistan war, Shehzada seized control of Taliban operations against US forces and their Afghan allies in the southern part of the country once he was back in Afghanistan.
So... maybe warehousing these guys for the duration of the conflict isn't such a bad -- or far fetched -- idea after all. I think we're on pretty firm legal ground (per the 3rd Geneva Convention) to detain battlefield prisoners for the duration of the conflict as we're doing at Guantanamo. It's really a question of whether we want to do that or not. So far, we've figured that most of the guys at Gitmo were low-ranking foot soldiers who could be released without the risk of them coming up again to fight us. We may want to reexamine that judgment.

Sunday, December 14, 2003

"We got him"

U.S. forces captured Saddam Hussein near his hometown of Tikrit in Iraq. The Pentagon reports that soldiers from the 1st "Raider" Brigade, 4th Infantry Division, found him during a battalion-sized combined-arms raid which included armor, infantry, artillery and Army aviation.
Sanchez described the operation that captured Saddam. The general said it was a cordon-and-search operation, and coalition forces sustained no casualties. In fact, he said, coalition forces never fired a shot.

"For the last several months, a combination of human intelligence tips, exceptional intelligence analytical efforts and detainee interrogations narrowed down the activities of Saddam Hussein," Sanchez said.

Sanchez said intelligence pointed to two likely spots where Saddam could be hiding. He said the Americans struck with lightning speed under cover of darkness. The troops initially did not find Saddam. "As a result, the 1 st Brigade Combat Team elected to cordon the area and conduct an extensive search," Sanchez said. "Coalition forces subsequently found a suspicious location."

In the search, U.S. forces discovered a "spider hole." "After uncovering the spider hole, a search was conducted and Saddam Hussein was found hiding at the bottom of the hole," Sanchez said. "Saddam was captured without resistance."
First things first: I'm very proud of our soldiers who executed this mission and captured Saddam Hussein. The 1st Brigade, 4th Infantry Division, is my old unit. I was its MP platoon leader for two years, and I trained with a number of people still in the unit who are over there right now. It gave me enormous pride to see my old unit involved with this operation, and I am proud of them for their perseverance in the hunt for Saddam. Raiders!

The political, strategic, and tactical implications of this event are still unclear. But I think it's fair to say that this will change things on the ground in Iraq. This event will also change the tenor of the debate in this country, and probably help the White House maintain support for the war in Iraq. In the long term, there will be serious questions to resolve about the dictator's fate. My vote would be either for an Iraqi-led criminal trial, or a trial before an international court in the Hague similar to the one now trying Slobodan Milosevic. More to follow.