Wednesday, December 31, 2003

Happy New Year

Stewart Baker, a Washington attorney who used to be GC for the National Security Agency, has an excellent essay in Slate wherein he argues that we have invested too much in separating law enforcement from intelligence in the name of civil liberties. This "wall of separation" grew up after various agencies abused various groups' privacy during the 1960s and 1970s, and was thought to safeguard citizens from the more invasive forms of surveillance used in the national security world. Unfortuately, the result has been that good intel could not be passed onto law enforcement agencies. And that, in turn, has handcuffed America's cops in dealing with terrorism, with deadly results.
. . . the source of this tragedy was not wicked or uncaring officials. The wall was built by professionals who thought they were acting in the country's and their agency's best interest. They were focused on the hypothetical risk to privacy if foreign intelligence and domestic law enforcement were allowed to mix, and they worried that courts and Congress would punish them for putting aside these theoretical concerns to combat a threat that was both foreign and domestic. They feared that years of successful collaboration would end in disaster if the results of a single collaboration could be painted as a privacy scandal, so they created an ever-higher wall to govern operations at the border between domestic law enforcement and foreign intelligence. As drafted, the rules technically allowed antiterrorism investigators to do their jobs—if the investigators were sufficiently determined and creative. For a while they were, but the FISA court scandal sapped their determination and finally choked off any practical hope of getting the job done.

The second lesson is that we cannot write rules that will both protect us from every theoretical risk to privacy and still allow the government to protect us from terrorists. We cannot fine-tune the system to perfection, because systems that ought to work can fail. That is why I am profoundly skeptical of efforts to write new privacy rules and why I would rely instead on auditing for actual abuses. We should not again put American lives at risk for the sake of some speculative risk to our civil liberties.

And the final lesson? Perhaps it isn't fair to blame all the people who helped to create the wall for the failures that occurred in August of 2001. No one knew then what the cost of building such a separation would be. But we should know now. We should know that we can't prevent every imaginable privacy abuse without hampering the fight against terror; that an appetite for privacy scandals hampers the fight against terror; and that the consequence of these actions will be more attacks and more dead, perhaps in numbers we can hardly fathom.

The country and its leaders have had more than two years to consider the failures of August 2001 and what should be done. In that time, libertarian Republicans have joined with civil- liberties Democrats to teach the law enforcement and intelligence communities the lesson that FBI headquarters taught its hamstrung New York agent: You won't lose your job for failing to protect Americans, but you will if you run afoul of the privacy lobby. So the effort to build information technology tools to find terrorists has stalled. Worse, the wall is back; doubts about legal authority are denying CIA analysts access to law enforcement information in our new Terrorist Threat Integration Center. Bit by bit we are recreating the political and legal climate of August 2001.

And sooner or later, I fear, that August will lead to another September.
Analysis: I wish Mr. Stewart was overstating the case here, but I don't think he is. First, a cursory glance at his c.v. (which includes a J.D. from UCLA Law School) will tell you that he knows his stuff. Second, the Senate Select Committee on Intel has come to the same conclusion -- that this wall of separation handicapped America's government in detecting and interdicting the 9/11 hijackers. Third, not enough has been done to increase information sharing between public agencies, both horizontally (think CIA-FBI) and vertically (think FBI-NYPD). We're still nowhere near the day where the local police officer can reach into an intel database to input his observations from the street, or where he receives actionable intel from above. Or even where first responder agencies in the same county can talk on the same radios! This wall of separation continues to impede our anti-terrorism efforts, along with the bureaucratic walls which separate federal, state and local agencies.

Despite the billions we've spent on homeland security since 9/11/01, we may not have achieved much of a real increase in security because of our failure to fix this area. We've won some tactical battles overseas in the war on terror, and we've tightened some important areas of our domestic security net (like port security). But intelligence is what drives operations, and we have not yet created the intelligence or information architecture yet to drive domestic anti-terrorism operations. Until we do, we will be vulnerable to an enemy who can move faster than the flow of information between the FBI and the CIA, or between the CIA and the Los Angeles Police Department.

Winning hearts and minds in Iraq: Here and here are two ways the U.S. Army is working to earn the trust of Iraqi professionals and citizens. I wish I could say these were unique anecdotes, but I've seen scores of similar stories in e-mail passed among my friends from the Army. Our soldiers are doing good work over there, despite running guerilla conflict.
Israeli war dames

Mark Lewis points to an article in the Washington Times highlighting the designation of an mixed-gender infantry battalion in the Israeli army. Israel is one of a few Western nations to have used women as infantry (as opposed to support troops), and it has often been used as a point of comparison by those who would have women serve in the American infantry. The Israeli army constituted these units out of necessity -- its all-male infantry force structure couldn't stretch to do all of the missions. Mark's got some great comments on the issue, which reflect his experience in the Army's elite Ranger battalions and current engagement with Army personnel policy.
Hoping to relieve units stretched thin by the Palestinian uprising, the army created predominantly female companies three years ago to patrol the border for drug smugglers and the rare terrorist infiltrator. Only men served on the more dangerous Lebanese border and in the Palestinian territories.

* * *
Israeli army doctors recommended in October that women be barred from service in combat units on the basis of medical studies showing that they are less able than men to lift heavy objects and carry out sustained, strenuous activities.

The doctors, however, said there was no objection to women serving in light infantry units along peacetime borders, as the Carcal company does, or as radar operators in intelligence units, where they have proved themselves on numerous occasions.

The United States bans women from ground combat units, which include artillery, infantry and armor. They may, however, serve on combat ships and aircraft. And they serve as military police, a job that in Iraq puts them close to counterinsurgency operations.

Carcal company, whose name is Hebrew for wildcat, has a 2-1 ratio for women to men and requires women to sign on for an extra year of service. The four-month boot camp includes training in urban warfare and 20-mile stretcher marches, a regimen based on other infantry brigades.
Analysis: So far, the experiment seems to be working. The Israeli army has learned to deal with the two major issues facing gender integration of the infantry: physical capabilities, and unit cohesion. Solving the first problem is really a matter of setting mission-based performance standards and ruthlessly enforcing them. (Mark's comments re: Ranger indoctrination are relevant here) It comes down to the will of leaders to kick out women (or men) who don't meet the standard. Solving the second problem is much harder. The presence of both sexes in units adds a huge rock in the rucksack of every NCO and officer. But once again, tough leadership can make it work. If you built a strong, tough, cohesive unit through the crucible of training and shared sacrifice, you can make mixed-gender units work.

As Mark points out, women have done quite well in the U.S. Army during the recent Iraq and Afghanistan wars. Unfortunately, some have used anecdotal incidents like PFC Lynch's capture and sexual assault to argue that women don't belong in ground combat. Others have used pregnancy statistics and non-battle injury statistics to the same effect. But as I wrote a year ago in War Dames for the Washington Monthly, the wisdom of sending women into ground combat will be judged by mission accomplishment, not sideshows like these. Women performed well in this war, whether they were MPs, Apache pilots, intelligence analysts, truck drivers, or medics. (A female Army medic, SPC Billie Grimes, appears on the cover of Time's person of the year issue.) Mission accomplishment is the bottom line in combat, and our daughters in uniform proved their mettle this time around.

Where will this issue go from here? It's hard to tell. I'm not sure the American public or American military is ready to fully integrate women into the combat arms yet. But attitudes are a changin'. Mark points out a recent Army Times survey (subscription required) on U.S. military attitudes on the issue, which found that "More than two in three supported the idea of women serving in combat, though many suggested women should only get such assignments if they choose them."

Unfortunately, the Army Times survey also found that "Nearly half of women surveyed said they had been the victim of sexual harassment in the military." This last part deserves mention, because it lurks as one of the major unintended (but foreseeable) consequences of gender integration for the military. Arguably, the American military has become the model institution for racial integration in America. (See All That We Can Be by Charlie Moskos and John Butler for a great history of this issue.) Yet, the military still has extensive Equal Opportunity programs in every unit to manage racial issues and educate soldiers about them. Similarly, the military has made great strides in the area of gender integration, and is arguably more equal for women than any major police or fire department. But there's still a long way left to go. The sad truth today is that a woman in uniform has more to fear from her fellow soldiers than from the enemy when it comes to sexual assault, notwithstanding the hollow arguments from those who would use PFC Jessica Lynch's assault as an argument against women in the military. (I explain here why this argument is hollow.) As the American military embraces women more, it must also come to grips with the gender problems which affect every workplace in America. That will take time.

It may be another 5, 10, even 25 years before the military is fully ready to integrate women in every unit. We're not where the Israelis are (yet), where we have to push women forward because we need the soldiers on the front line. We're also doing pretty well, as shown by the performance of thousands of women in the second Gulf War. There are still issues, from problems at the Air Force Academy to sexual tension in units now deployed to Iraq. But ours is a heterogenous force, and there will always be issues in a heterogenous force. The key to overcoming these issues is leadership -- from the top, in the form of smartly written policies; and at the bottom, in the form of officers and NCOs who enforce standards. America's military is stronger than the differences between its soldiers, whatever those differences may be. Strong leadership, shared sacrifice, and professionalism have a remarkable ability to make these differences irrelevant, if not altogether non-existent. In time, our military will overcome its gender issues just as it did with its race issues.

Tuesday, December 30, 2003

New blueprints for military commissions

A friend just called to let me know that the Pentagon has announced some major changes to its design for the military commissions it plans to use to try men currently detained at Guantanamo Bay, Cuba. The changes are very interesting, and they probably presage the announcement of tribunals in the near future. Basically, the new rule establishes a right of review, similar to a right of appeal in the civilian system. Also, the Pentagon announced today the appointment of four men to serve as review panel members, similar to an ad hoc court of appeals:
· Griffin B. Bell, former U.S. attorney general and former U.S. circuit judge, U.S. Court of Appeals for the Fifth Circuit

· Edward G. Biester, judge, Court of Common Pleas of Bucks County, Pa., Seventh Judicial District; former Pennsylvania attorney general; and former member of the U.S. House of Representatives

· William T. Coleman, Jr., former secretary of transportation

· Frank Williams, chief justice of the Rhode Island Supreme Court.

The four will be commissioned as Army major generals for an approximate two-year term while serving intermittently in this role.

Review panel members are responsible for reviewing military commission proceedings. The review panel may consider written and oral arguments by the defense, the prosecution, and the government of the nation of which the accused is a citizen. If the review panel finds that a material error of law occurred, the review panel will return the case for further proceedings, including dismissal of charges. The review panel may also make recommendations to the secretary of defense with respect to the disposition of the case before it, including sentencing matters. Except as necessary to safeguard protected information, written opinions of the review panel will be published.
Analysis: These changes are big, but critics of the tribunals will probably say they don't go far enough. The lack of a formal review process has been a constant criticism of the tribunals since the original Presidential order was issued in Nov. 2001. However, this new rule doesn't set up an actual right of appeal, such as in the civilian courts. And it doesn't take the obvious course of action, which would've been to set up a right of appeal to the U.S. Court of Appeals for the Armed Forces. Nor does it give tribunal defendants a right of appeal to the U.S. Courts of Appeal or the U.S. Supreme Court. Consequently, I predict that these changes won't do much to assuage the concerns of those who have criticized our policies at Guantanamo Bay, and who have criticized the tribunals.

There may also be an Art. I/Art. III issue lurking here for defense attorneys to fight on appeal, since this new rule seems to pre-empt any possibility of jurisdiction for the civilian courts. That preemption may contravene Art. III, Sec. 2 of the Constitution, as well as various parts of Title 28, United States Code. Essentially, the Constitutional grants the courts jurisdiction over "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority". Sec. 2 goes on to give the Supreme Court appellate jurisdiction "In all the other Cases before mentioned . . . both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Art. I, Sec. 8 then gives Congress the power "To make Rules for the Government and Regulation of the land and naval Forces". Arguably, these Presidential (think Art. II) rules for the conduct of military tribunals clash with both Art. I and Art. III, because they (a) deprive the U.S. courts of jurisdiction and (b) exist outside the scope of the Congressionally-passed Uniform Code of Military Justice. I'm not smart enough (yet) to opine on that, but maybe Eugene Volokh or Eric Muller can help me out with an answer.

More to follow...

Update: Jess Bravin reports in this morning's Wall Street Journal (subscription required) that the real story here was the decision to replace Deputy Defense Secretary Paul Wolfowitz in the tribunal process with a retired Army JAG 2-star general. He also writes that at least one Gitmo defense attorney -- USMC Major Michael Mori, assigned to defend David Hicks -- is not impressed with these changes.
Dereliction of duty?

Did the National Guard deliberately unprepared Chinook helicopters into harm's way?

The St. Louis Post-Dispatch reports today that senior National Guard officers have claimed responsibility for the decision to deploy CH-47 "Chinook" helicopters to Iraq that lacked the most modern flare-dispensing systems available. That decision may be responsible for the missile attack which downed a Chinook last month in Iraq, killing 16 soldiers.
WASHINGTON - The deployment to Iraq of a combined Illinois-Iowa National Guard Chinook unit without required anti-missile defenses did not reflect an oversight or lack of coordination between the Guard and the Army.

Rather, it was the consequence of decisions made years ago by the Army to buy only a portion of the Guard's air defense equipment, senior Guard leaders say.

To save money, and assuming that Guard units were unlikely to be deployed in great numbers or face hostile action, Army officials ordered just 50 percent of the ALQ-156 flare-launching systems actually needed for the Guard's fleet of Chinooks.

"A conscious decision was made not to buy as many as we need," said Lt. Gen. Roger C. Schultz, director of the Army National Guard. "It's a decision that has some level of risk with it."
Analysis: This discussion came up on a military list-serv that I subscribe to, and it generated some good comments. I don't think this is "deliberate" or "intentional" in the legal sense. It's closer to negligence or recklessness though, insofar as the National Guard knew the Chinooks lacked the flare equipment and still sent them into a risky environment anyway. As an operational planner, I learned the difference between taking risks and taking gambles. This decision looks a lot more like a gamble. We rolled the dice that these Chinooks wouldn't face sophisticated surface-to-air missiles, and we lost.

It'd be interesting to see the risk calculus laid out for this decision, and some of the others which have affected Reserve Component (RC) readiness for Iraq. It's one thing to assume manageable levels of risk, i.e. we're not going to field this flare system until the unit is mobilized. It's another to assume away the risk entirely, which is what this situation looks like. I think it's irresponsible to identify a risk and the appropriate control measure for that risk, but then ignore the problem because of external fiscal constraints. The problem doesn't go away -- it just lurks around until the situation is ripe. Somewhere, this issue should have been inserted into an operational plan or a mobilization plan so that the Chinook unit was retrofitted with these flare devices before deployment to Iraq.

There are some things we can chalk up to budgetary constraints and fiscal realities; there are others that we can chalk up to bad priorities. This flare issue probably falls in the first category. Other issues, like the failure to field SINCGARS radios to RC units or the failure to field Interceptor body armor, fall in the "bad priorities" category. I *do* think it's derelict that we've let RC equipment fall so far behind Active Component (AC) equipment, but that we're pouring money into future-force projects like the Future Combat System. That's a case of bad priorities in my book. We can't afford to neglect the current fight in order to do R&D; for the future fight. As it is, our force is one generation ahead of our allies, let alone our enemies. What's needed now is recapitalization and reinvestment in our current force, so that it has what it needs to get the job done in Iraq.

Also, I think this is another symptom of our mass-mobilization mentality (hat tip to Don Vandergriff and his work in Path to Victory for teaching me about this). If we were fighting WWIII and we had some mobilization time for the RC units, then theoretically, we could jumpstart our production lines and pour money into the defense industry in order to produce these things. The Pentagon could buy all the body armor, up-armored HMMWVs, desert BDUs, and other items it needs to outfit units on their way to Iraq. But that time doesn't exist for this war, because we've mobilized a lot of these units on short notice to meet a pressing need in Iraq. There just wasn't time to re-equip, re-train, and prepare units for deployment the way our doctrine was written. If they were lucky, they got a few days at the mob station, and that was it.

Unfortunately, it took a catastrophic tragedy like the Chinook shootdown to illuminate this problem. I'll bet there were lots of officers who knew about this issue, especially the pilots and commanders of this reserve Chinook unit in Iraq. But they weren't listened to until the consequences of this risk became known. Now, hopefully, their voices will be listened to.

Monday, December 29, 2003

The men of Charlie Company

Ron Martz, who went to war as an embedded journalist with the 3rd Infantry Division, has a great series in today's Atlanta Journal-Constitution on the men of Charlie Company, 1-64 Armor, and their experiences since coming home from the war in Iraq. The series also includes Mr. Martz' articles from Iraq. These two series are some of the best war reporting I've seen, right up there with John Burns (NYT), Rick Atkinson and William Branigin (WP), and David Zucchino (LAT). Great job -- definitely worth a read.
Army re-adopts stop loss

Policy prevents discharges, reassignments; breeds resentment

The Washington Post reports this morning that the Army has reinstituted a policy known as "stop loss", whereby soldiers with discharge or retirement plans are kept in the service by force of law. The policy is intended to help the Army keep key people at a critical time, such as those assigned to a unit on the deployment list for Iraq. But when applied, it causes great resentment among soldiers and families, who feel as if the government reneged on its enlistment contract.
Chief Warrant Officer Ronald Eagle, an expert on enemy targeting, served 20 years in the military -- 10 years of active duty in the Air Force, another 10 in the West Virginia National Guard. Then he decided enough was enough. He owned a promising new aircraft-maintenance business, and it needed his attention. His retirement date was set for last February.

Staff Sgt. Justin Fontaine, a generator mechanic, enrolled in the Massachusetts National Guard out of high school and served nearly nine years. In preparation for his exit date last March, he turned in his field gear -- his rucksack and web belt, his uniforms and canteen.

Staff Sgt. Peter G. Costas, an interrogator in an intelligence unit, joined the Army Reserve in 1991, extended his enlistment in 1999 and then re-upped for three years in 2000. Costas, a U.S. Border Patrol officer in Texas, was due to retire from the reserves in last May.

According to their contracts, expectations and desires, all three soldiers should have been civilians by now. But Fontaine and Costas are currently serving in Iraq, and Eagle has just been deployed. On their Army paychecks, the expiration date of their military service is now listed sometime after 2030 -- the payroll computer's way of saying, "Who knows?"

The three are among thousands of soldiers forbidden to leave military service under the Army's "stop-loss" orders, intended to stanch the seepage of troops, through retirement and discharge, from a military stretched thin by its burgeoning overseas missions.

"It reflects the fact that the military is too small, which nobody wants to admit," said Charles Moskos of Northwestern University, a leading military sociologist.

To the Pentagon, stop-loss orders are a finger in the dike -- a tool to halt the hemorrhage of personnel, and maximize cohesion and experience, for units in the field in Iraq, Afghanistan and elsewhere. Through a series of stop-loss orders, the Army alone has blocked the possible retirements and departures of more than 40,000 soldiers, about 16,000 of them National Guard and reserve members who were eligible to leave the service this year. Hundreds more in the Air Force, Navy and Marines were briefly blocked from retiring or departing the military at some point this year.

By prohibiting soldiers and officers from leaving the service at retirement or the expiration of their contracts, military leaders have breached the Army's manpower limit of 480,000 troops, a ceiling set by Congress. In testimony before the Senate Armed Services Committee last month, Gen. Peter Schoomaker, the Army chief of staff, disclosed that the number of active-duty soldiers has crept over the congressionally authorized maximum by 20,000 and now registered 500,000 as a result of stop-loss orders. Several lawmakers questioned the legality of exceeding the limit by so much.
Analysis: First, a note on these numbers. The Army's "end strength" is capped as a matter of law. Congress authorizes a certain number of soldiers for each service in each year's National Defense Authorization Act. It is illegal for the Pentagon to go over that number, although there are many loopholes. The Army is currently over its end-strength authorization, but that's just half the story. When you include the 155,000+ Army reservists and guardsmen now activated, you get a number closer to 650,000. That's significantly more than the Army's end strength number. Since 9/11, the Army has had tens of thousands of reservists mobilized at any given time. So in reality, the story is much bigger than what the Post is reporting.

Today's Army is stretched to the limit, with more than half of its strength committed to this rotation in Iraq or the next one. "Stop loss" enables the Army to more easily manage its personnel for the Iraq mission, which has placed an immense burden on the Army's personnel system. It's hard to stress just how hard this has been for the military to manage, what with the second and third-order effects on schools, unit manning, retirements, etc. The close cousin of stop-loss, "stop move", has also been put into play. That keeps soldiers in specific units, even if they were slated to be reassigned. This has been used to keep certain units together, such as those now training for deployment to Iraq. Ironically, the two policies have created a de facto system of unit manning, which in many cases has led to better units on the ground in Iraq with more unit cohesion than they might have without stop-loss and stop-move in place.

I think stop loss can be a good tool, but it can also be abused. It's one thing to predict how many new privates you need for a given mission. Recruiting and producing those is comparitively easy, because you can do so with your existing training base -- just a ramp up in production numbers. But you can't produce mid-level sergeants and officers in the same way, nor can you produce the kind of specialized soldiers (e.g. Military Police, Civil Affairs, Special Forces, MI linguists, etc) now needed in Iraq and Afghanistan. Producing those soldiers takes years, and it would have been practically impossible to forecast the needs for those 5-10 years ago in order to have enough of them right now.

If I were in the Army's shop for Manpower & Reserve Affairs, I'd be very judicious about the way I used "stop loss" and "stop move". Each of these devices is a good short-term fix, but it creates enormous secondary and tertiary problems for the Army. As the Post's article says, soldiers often decide to get out because of heavy-handed policies like this, and the Army may create another exodus of mid-level talent (circa 1999-2001) if it uses these tools too much. This will hurt the reserves the most, I think, because those soldiers face the most turbulent change when they're mobilized and deployed (vice active-duty soldiers who don't have to leave their jobs). And we have a lot of reservists involved in this mission -- so many, in fact, that many state governors are concerned their National Guards lack the domestic capacity to respond to disasters and other state missions.

Bottom Line: The Army can't afford to just manage its personnel in order to fight this war. It must manage its personnel well enough to leave the Army ready to fight the next war, wherever that may be. One captain in the Army's personnel headquarters told me recently that a general officer bellowed "We're at war -- nothing else matters" to his staff when they brought up some of these long-term issues. That kind of thinking won't work for the Army if it wants to be ready for the next war. It must consider the long-term effects of its current policies on its personnel, or else there won't be a trained and ready Army for the next war.

Sunday, December 28, 2003

Is anthrax still a threat?

Judge halts military vaccination program, while experts say the bug still threaten the civilian population

Thankfully, it's been a while since bacillus anthracis dominated the news. But this week, U.S. District Judge Emmet Sullivan enjoined the American military from inoculating its personnel against anthrax, saying that the President had not signed a special finding necessary to require mandatory inoculations. (Full disclosure: I got the anthrax vaccine in 1998 and I think it's perfectly safe.) The essence of the case was a challenge to the military's mandatory inoculation policy, which was improper given the lack of a full FDA license for the vaccine.
In blocking mandatory anthrax inoculations until a full trial can be held on the matter, U.S. District Judge Emmet G. Sullivan agreed with the contention by six unnamed Defense Department plaintiffs that the anthrax vaccine is an experimental drug "being used for an unapproved purpose" -- namely, for exposure to airborne anthrax as well as exposure through the skin. As such, he ruled, it cannot under federal law be administered to service members on a mandatory basis.

Sullivan said he was not persuaded by arguments from Pentagon lawyers that administering the vaccine on a voluntary basis would interfere with military operations in Iraq and elsewhere. But if they believe that is the case, the judge said, federal law gives them the option of obtaining a presidential waiver of service members' right to informed consent. Such a waiver, Sullivan wrote, "would be an expeditious end to this controversy."

Sullivan's ruling comes with more than 800,000 U.S. troops having received the vaccine since 1998. Many of them received the vaccine -- a series of six injections -- last year, before deploying to fight the war in Iraq.
The next day, the Pentagon fired back at Judge Sullivan with a press conference on the safety and necessity of the anthrax vaccine. The Justice Department, on behalf of the Pentagon, has also filed a motion to clarify the judge's ruling on procedural grounds. If successful, the Pentagon could limit the ruling to just the six plaintiffs in the case, because a formal plaintiff class was not certified in accordance with the Federal Rules of Civil Procedure.
. . . at a Pentagon briefing called to rebut Sullivan's findings, William Winkenwerder Jr., assistant secretary of defense for health affairs, took strong exception to Sullivan's finding that troops receiving the anthrax vaccine were being used as "guinea pigs."

* * *
Winkenwerder noted that a March 2002 study by the National Academy of Sciences' Institute of Medicine concluded that the vaccine is effective "for the protection of humans against anthrax, including inhalation anthrax, caused by all known or plausible engineered strains of Bacillus anthracis."

* * *
Winkenwerder said that most of those who refused the vaccine did so in the early stages of the program, in 1998 and 1999, and that only 10 have refused it since the program accelerated this summer. "Our most recent experience in the last two years is that our service members support the vaccine program and accept it, and our refusal rate is very, very, very small."

In his order, Sullivan noted that the Pentagon recently updated the "adverse reaction rate" associated with the anthrax vaccine from 0.2 percent to 5 percent to 35 percent.

Army Col. John D. Grabenstein, who helps administer the anthrax vaccine program and appeared with Winkenwerder, said adverse reaction rates of 5 percent to 35 percent are comparable to those of other vaccines and flu shots, typically indicating nothing more than headaches or swelling at the injection site on a patient's skin.

"These are not scary numbers," he said.
And in Sunday's New York Times, we have an article by Judith Miller, co-author of Germs, on the continuing danger posed by anthrax to the American population. Ms. Miller's reporting on WMD in Iraq has been criticized lately for a variety of reasons, but I've found her writing on biological warfare generally to be quite good. Here's what she has to say:
One indication of concern was a secret cabinet-level "tabletop" exercise conducted last month that simulated the simultaneous release of anthrax in different types of aerosols in several American cities.

The drill, code named Scarlet Cloud, found that the country was better able to detect an anthrax attack than it was two years ago, said officials knowledgeable about the exercise. But they said the exercise also showed that antibiotics in some cities could not be distributed and administered quickly enough and that a widespread attack could kill thousands. "The exercise was designed to be very stressful to the system, and it was," a senior government official said.

Veterans of America's biological warfare program of the 1950's and 1960's said the recent recognition of the ability of anthrax to spread widely appeared to be in line with research conducted decades ago and remains secret.

"The new generation of biological and chemical experts is simply unfamiliar with the earlier studies," said William C. Patrick III, a former head of product development at Fort Detrick, Md., then the military's center for developing germ weapons.

Another factor fueling concern about anthrax is the questioning of senior Qaeda agents now in United States custody, administration officials said.

One official said that after his arrest in March, Khalid Shaikh Mohammed, one of Osama bin Laden's top lieutenants, confirmed to American officials earlier reports that Al Qaeda, and particularly its second in command, Ayman al-Zawahiri, a physician, had long been eager to acquire biological agents, particularly anthrax. The official noted that Qaeda agents had inquired about renting crop-dusters to spread pathogens, especially anthrax.

* * *
The drill was an effort to follow up on weaknesses in federal emergency response plans identified in a simulated bioterrorism attack. That exercise, called Top Off 2, was organized by the Department of Homeland Security and involved 8,000 local, state, and federal officials. It simulated a radiological attack on Seattle and a pneumonic plague attack on Chicago.

The weeklong exercise showed that the government needed to improve plans for delivering vaccines and antibiotics to those exposed to a deadly agent, administration officials said. It also demonstrated that the government needed better plans for controlling and monitoring the movement of potentially contaminated produce and people in such an emergency, officials said.

* * *
But it also pointed up the problems in rapid distribution of medicine that could counteract anthrax exposure and showed that the government had enormous difficulties stopping the spread of contamination through the country and into Canada.
Analysis: Anthrax, and bioterrorism, is probably still a threat to the American population. To the extent that we will deploy our military against enemies who have anthrax in their arsenal, it's still a threat to our military. Collectively, I think we've forgotten how big of a threat exists from biological and chemical terrorism. These weapons are all too easy to make and deploy, and we don't have the best tools in place to counteract them. I think we've invested an awful lot in making our airports and airplanes safe against the last attack, but that enormous outlay of resources was probably wasted. Instead, I think we should have concentrated more resources against this next threat, and the various means (detection, vaccination, treatment, etc) for defeating it.

12/31 Update: The New York Times reports that the FDA has approved the anthrax vaccine used by the military for use against inhaled anthrax, with language that's clearly directed to persuade Judge Sullivan to lift his injunction.