Monday, January 12, 2004

"Liberal Hawks" on the War

Slate features an interesting discussion this week between a series of noted writers who describe themselves as "liberal hawks". I take the term to mean those who believe in Democratic political ideology, but also believe in a muscular American foreign policy. The group includes Paul Berman, Thomas Friedman, Christopher Hitchens, Fred Kaplan, George Packer, Kenneth M. Pollack, Jacob Weisberg, and Fareed Zakaria -- a very distinguished panel to say the least. The first installment of the discussion looks good so far; we'll see how this develops.
A bridge too far?

Army War College report castigates White House, Pentagon for Iraqi endeavor

Tom Ricks reports in the Washington Post on a new Army War College study that has some choice words for the White House and Pentagon over its conduct of the "global war on terrorism." In general, the study says that we have sacrificed many of our strategic objectives to pursue the war in Iraq, and that in doing so, we have also pushed the U.S. Army close to its breaking point. That latter part has made it impossible to pursue any further objectives in the GWOT, and now impedes our ability to conduct this war in places like Afghanistan, East Africa, and the Phillipines. (Also see this study by Dr. Conrad Crane from 2002 making a similar point.)
The report, by Jeffrey Record, a visiting professor at the Air War College at Maxwell Air Force Base in Alabama, warns that as a result of those mistakes, the Army is "near the breaking point."

It recommends, among other things, scaling back the scope of the "global war on terrorism" and instead focusing on the narrower threat posed by the al Qaeda terrorist network.

"[T]he global war on terrorism as currently defined and waged is dangerously indiscriminate and ambitious, and accordingly . . . its parameters should be readjusted," Record writes. Currently, he adds, the anti-terrorism campaign "is strategically unfocused, promises more than it can deliver, and threatens to dissipate U.S. military resources in an endless and hopeless search for absolute security."

* * *
His essay, published by the Army War College's Strategic Studies Institute, carries the standard disclaimer that its views are those of the author and do not necessarily represent those of the Army, the Pentagon or the U.S. government.

But retired Army Col. Douglas C. Lovelace Jr., director of the Strategic Studies Institute, whose Web site carries Record's 56-page monograph, hardly distanced himself from it. "I think that the substance that Jeff brings out in the article really, really needs to be considered," he said.
Analysis: I think Mark Lewis has the right analysis of this story. It's not news that we botched the Phase IV (post-war) planning for Iraq. But the issue here is one of "willful ignorance". Mark cites to a forthcoming article from James Fallows in the January 2004 Atlantic Monthly titled "Blind Into Baghdad", which includes the following passage:
"The U.S. occupation of Iraq is a debacle not because the government did no planning but because a vast amount of expert planning was willfully ignored by the people in charge."
And this isn't the first time either. Remember back in early 2003, when then-Army Chief of Staff Eric Shinseki testified to Congress about the force needed to secure Iraq after the war? In response to a direct question, Gen. Shinseki said it would take "several hundred thousand" troops to secure the Iraq after the war ended. Where did he get that number? Two places. His experience as a commander in Bosnia, and an Army War College study which extrapolated a prediction for Iraq from past U.S. occupations in places like Germany, Haiti, Bosnia, and Kosovo. He could've also looked to this RAND book by Amb. James Dobbins. Bottom line: Gen. Shinseki's numbers were sound. But that didn't save him from the wrath of the E-Ring. He was immediately criticized by the Office of the Secretary of Defense, with Deputy Defense Secretary Paul Wolfowitz calling such numbers "wildly off the mark".

And it gets worse. The Pentagon doesn't even want to read the study. This from Mr. Ricks' story:
Larry DiRita, the top Pentagon spokesman, said he had not read the Record study. He added: "If the conclusion is that we need to be scaling back in the global war on terrorism, it's not likely to be on my reading list anytime soon."
Now, this could simply be bad spokesmanship by the flaks in the ASD(PA) shop. But it could also reflect the prevailing sentiment in the E-Ring, and if so, that's a very dangerous thing. The current administration -- and the current leadership in the Pentagon -- has evidenced a penchant for doing things its way. Some career military officers have even resigned as a result of this. The issue here is that this Administration claims a monopoly on good ideas, and demonstrates an unwillingness to accept ideas from outside of their ideological and political framework. In a sense, this is the classic failure to "think outside of the box" that business executives lament all the time.

This failure is ironic, because this administration swept into the Pentagon buzzing about "transformation" and how it would revolutionize the military by sheer force of ideas. It would leap-frog a generation in weapons systems and doctrine, leaving both our enemies and allies in the dust. But the reality has been quite different. While this administration has been willing to embrace some revolutionary ideas (like fighting an airpower/Special Forces campaign in Afghanistan), it has failed to listen to its internal experts about how to best consummate those tactical victories. Whether it was failing to send in American infantry to seal off Tora Bora, failing to adequately plan for Phase IV in Iraq, or failing to resource the nation-building part of the mission in Iraq, the administration has proved this point again and again.

The tragedy here is that the Pentagon had the wisdom in its own house -- and ignored it. The Army War College is like an official think tank for the Army, along with the FFRDCs (e.g. RAND and IDA) that support the Defense Department. Its libraries, students and professors are the repository for centuries of military wisdom. They are precisely the ones who can provide the Pentagon with out-of-the-box analysis. And they did. Dr. Crane's study told the Pentagon precisely what it would take to win the peace in Iraq, and now Dr. Record has another study telling the Pentagon why it should have listened to the earlier studies. But the folks in OSD don't want to hear it, and they don't even want to read it.

Sunday, January 11, 2004

A spring offensive in Iraq?

Could the rotation of units be more than just a rotation?

The New York Times reports today on the "logistical ballet" that will take place over the next several months in Iraq, as 125,000 soldiers rotate home and 110,000 soldiers rotate into Iraq to replace them. There will be overlap between the two sets of units. Primarily, such overlap is intended to let the new units learn from the old ones, such that the new units will not hit the ground blind and without a clue. The overlap is also intended to make the logistical effort easier. Ostensibly, we can use the same ships that take new units over there to bring the old units home. (Doing it in reverse would require 2 round trips, a very expensive proposition.) But there's something else -- something much more operational in nature -- and Eric Schmitt alludes to it in his article:
During this rotation, about 110,000 fresh troops will flow into Iraq to replace 125,000 who have been there for about a year. The first 200 returning soldiers from the 101st Airborne Division arrived home this week in Fort Campbell, Ky. Soldiers from the 82nd Airborne Division were also heading home, to Fort Bragg, N.C.

At the peak period of overlapping forces, commanders will be able to capitalize on having as many as 200,000 troops in Iraq. But the rotation also poses new risks as American officials say they fully expect guerrillas to try to exploit the transition to new, less experienced troops.

"The shifting focus of their attacks is relentless," said Maj. Gen. Stephen M. Speakes, the senior Army officer here overseeing the troop rotation. "But this will not be a period of vulnerability."
Analysis: I'm not the first to key in on this fact. Several of my colleagues at JOForum, including Mark Lewis and Michael Noonan, noticed it before I did. But I think it deserves mention again, because it's an issue that has not been reported by the major media in any depth. Could this spike in U.S. troop strength be intended to facilitate a spring offensive against the Iraqi insurgency?

The answer is probably yes, with a couple of reservations. To date, we still have not imposed the kind of police presence we had in either Bosnia or Kosovo in Iraq -- we just haven't had the troops on the ground to put that kind of per-capita manpower on the street. There are some areas of Iraq, such as Samarra and elsewhere in the Sunni Triangle, where even reporters dare not go these days. I conceptualize these areas like South Central L.A. -- bad areas in need of substantial patrolling in order to make them safe. Having an extra 100,000 troops on the ground will enable us to do the kind of security operations we've always wanted to do, and to focus large amounts of manpower on discrete areas in order to destroy any nascent insurgencies in those locations.

While I don't think we're going to see a full-scale, high-intensity offensive this spring, I do think we will see a redoubled "law enforcement"/"order maintenance" (hat tip to my undergraduate thesis adviser James Q. Wilson and his Broken Windows thesis) offensive in Iraq. The task/purpose will be to conduct security patrols of the country in order to pacify those areas which have remained unruly since the regime's demise in April 2003. The intended goal will be to facilitate the transfer of power to the infant Iraqi Governing Council in June/July, and to increasingly hand more of the security mission over to the Iraqis.

Now, here's the reservations. First, as MAJ John Nagl describes in today's Sunday NYT Magazine, the key challenge in counter-insurgency warfare is to calibrate your level of force to kill the enemy without losing the population. It will get tougher to do that when we have all these extra soldiers on the ground, particularly soldiers without combat experience or recent experience in Iraq. Second, there's a fine line between the kind of aggressive law enforcement tactics I describe and looking like an occupying force. (I know, that's what we are, but there are reasons why it's good not to look that way.) The Marines seem to be getting this right, insofar as they're adopting a number of TTPs which will help them interface with the population, gather intelligence, and work with the Iraqi population to secure them. In a sense, it's a blend of dismounted patrolling and community policing -- with a whole lot of firepower to back you up.

It's also the essence of 4th Generation Warfare. The challenge in Iraq is not to kill as many Iraqi soldiers as possible -- it's to win the hearts and minds of the Iraqi citizenry. The "key terrain" is in those hearts and minds, and our tactics must be calibrated to seize that key terrain and hold it. Matt Rustler recently passed me this piece by William Lind, and here are a couple of bullet point observation he makes about 4GW in Iraq:
- How U.S. forces conduct themselves after the battle may be as important in 4GW as how they fight the battle.

- What the Marine Corps calls "cultural intelligence" is of vital importance in 4GW, and it must go down to the lowest rank. In Iraq, the Marines seemed to grasp this much better than the U.S. Army.

* * *
- Unfortunately, the American doctrine of "force protection" works against integration and generally hurts us badly. Here's a quote from the minutes of the seminar:
There are two ways to deal with the issue of force protection. One way is the way we are currently doing it, which is to separate ourselves from the population and to intimidate them with our firepower. A more viable alternative might be to take the opposite approach and integrate with the community. That way you find out more of what is going on and the population protects you. The British approach of getting the helmets off as soon as possible may actually be saving lives.
- What "wins" at the tactical and physical levels may lose at the operational, strategic, mental and moral levels, where 4GW is decided. Martin van Creveld argues that one reason the British have not lost in Northern Ireland is that the British Army has taken more casualties than it has inflicted. This is something the Second Generation American military has great trouble grasping, because it defines success in terms of comparative attrition rates.

- We must recognize that in 4GW situations, we are the weaker, not the stronger party, despite all our firepower and technology.

- What can the U.S. military learn from cops? Our reserve and National Guard units include lots of cops; are we taking advantage of what they know?
Lind goes onto make a lot of other interesting points. But he says at one point that 4GW is not new, and he's right. It's an evolution in warfare, but it builds on a number of ideas that date back to Sun Tzu and then some. More importantly, this should not seem new to the United States either. We learned about the importance of law enforcement operations (then called "constabulary" operations in post-WWII Germany and Japan). We also learned about these issues during the 1990s, in places like Somalia, Haiti, Bosnia and Kosovo. (See this book by James Dobbins and this article for more on how America learned and forgot the lessons of nation building from the 20th Century.)

In Summary: Thousands of troops have already started moving to training bases to prepare for Iraq, or to Iraq itself. The largest unit movement since WWII is now underway (although that was a 1-way move so it was simpler in many respects.) At the peak of this move, American commanders will have nearly 250,000 pairs of boots on the ground in Iraq. American commanders continue to fight a bloody counter-insurgency campaign in Iraq, against a force they estimate in the low thousands. Even today, some areas in Iraq remain lawless, and in need of pacification. If you were one of those commanders, and you were about to get 100,000 more troops for a while, what would you do?

Saturday, January 10, 2004

DOJ defends the Patriot Act online

I don't know if this is news or not, but I just noticed it and I haven't seen it reported elsewhere. The Justice Department's site now has a new addition titled "The USA PATRIOT Act: Preserving Life and Liberty". The site is linked off DOJ's main page, and contains a variety of pro-Patriot Act links from "Dispelling the Myths" to a compilation of news stories on the subject. I'm not sure if this will really turn the public opinion tide in favor of the Act... but it is a good resource for people like me studying terrorism and the law.
A general for war, peace and something in between

In Sunday's New York Times, John F. Burns profiles LTG Ricardo Sanchez in the way that only John F. Burns can. (That's meant as a compliment to this Pulitzer Prize-winning reporter, who is one of the best in the field today.) LTG Sanchez is the general who commands V Corps and all American forces in Iraq. His job is both the toughest and most coveted billet in the U.S. Army. The story details some of his challenges in Iraq, is worth a read.

Also see Professor Nagl's War, an article in Sunday's NYT Magazine about U.S. Army MAJ John Nagl. The title refers to MAJ Nagl's background as a Rhodes Scholar and West Point professor. But now MAJ Nagl is the S-3 (operations officer) for the 1st Battalion, 34th Armored Regiment, part of the force now securing Baghdad. Most of the story is about how he has applied his scholarly knowledge to the practice of counter-insurgency warfare in Iraq. (Thanks to Mark Lewis for the pointer.) Very interesting stuff.
Update on Saddam

Only the Los Angeles Times picked up the issue about repatriation and how it would actually facilitate Saddam's trial by the Iraqi government. Most newspapers focused on how the 3rd Geneva Convention would protect Saddam while he's in U.S. hands, and then concluded that it would impede his trial. Even though the NY Times talked to the right people (like Prof. Ruth Wedgwood), they missed this issue entirely. The AP misses the issue too, because they focus too closely on what will happen to Saddam while he's in U.S. custody, instead of how he can be tried after repatriation. The Washington Post obliquely hits the issue. (If only the Wall Street Journal printed on Saturdays... their reporters almost always pick these subtle issues up.)

So just to recap, here's a quick legal summary:

(1) The 3rd Geneva Convention Relative to the Treatment of Prisoners of War lays out the law in this area.

(2) Art. 4 of this document defines what a POW is, according to several sets of criteria. Once captured, prisoners are presumed to be "prisoners of war", according to a "rebuttable presumption" found in Art. 5. If any doubt exists as to the status of a prisoner -- whether he's a POW or not -- the detaining authority must convene a "competent tribunal" under Art. 5 to determine whether the POW meets the criteria in Art. 4 or not. Without such a determation, the prisoner is a POW. The Pentagon's lawyers determined that Hussein met the test of Art. 4, and that the presumption of POW status applied to him. But they really didn't have to say or do anything. In the absence of any competent tribunal's finding, Saddam was a POW all along, despite the semantic maneuvers of various U.S. spokesmen.

(3) Art. 84 allows for trial of a POW by a "military court" for crimes committed while in captivity, and Art. 85 mentions the possible trial of POWs for crimes committed prior to capture. Art. 99 specifies that a POW cannot be tried for a crime not in existence at the time the act was committed. (Note: this could impede any prosecution under the Iraqi Governing Council's tribunal, because it did not exist at the time of the crimes alleged by Hussein.) The subsequent articles outline procedural protections for POWs who are tried by the detaining power. But these sections are only relevant if we were try to Saddam while he's in captivity, in a U.S. military court.

(4) Art. 118 states that "Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities." [emphasis added] This effectively forces the U.S. to hand Saddam over to the Iraqis at the cessation of hostilities, which presumably will occur when the new Iraqi government becomes official. Once he's repatriated, it's up to the Iraqis what to do with him. The 3rd Geneva Convention no longer applies to Saddam once he's repatriated. And if the Iraqi government has taken root, and the U.S. is no longer an occupying power, then it's not clear whether the 4th Geneva Convention Relative to the Protection of Civilian Persons in Time of War would apply either.

(5) The Iraqi Governing Council has said that it will try Saddam according to its laws, in a special tribunal constituted for this express purpose. At this point, the 3rd Geneva Convention won't apply to Saddam anymore, since he will be a repatriated POW. The Art. 99 problem I mentioned above will be moot. The Iraqis may try Saddam subject to their laws, and if they so decide, execute him. Nothing in international law obviates a state's ability to subject its own citizens to its own domestic courts. This is a fundamental precept of state sovereignty, a principle which has been the bedrock of international law for hundreds of years. (International human rights lawyers will quibble with this point, saying that international law does forbid inhumane practices like torture and the deprivation of due process. But I think you'd be hard pressed to say that a state doesn't have the right to try its own citizens, especially if the trial carries some indicia of fairness and due process.)

That's all folks. It's really quite simple when you frame the issues this way. By giving POW status to Saddam, we actually make it easier to give him back to the Iraqis so they can try him, because there's no discretion involved. Art. 118 mandates that we hand Saddam back to the Iraqis at the cessation of hostilities -- end of story. This is probably why the Pentagon chose this course of action. Here we have a situation where American interests coincide with the dictates of international law. How could the choice be any easier?

Update: The Pentagon issued a press release today (1/10) saying that Saddam is a POW, but that his status could still change. WTF?
. . . Coalition Provisional Authority spokesman Dan Senor told reporters that Hussein's POW status may change, depending on any evidence that may be uncovered pertaining to his alleged crimes against humanity.

Hussein "is now technically an enemy prisoner of war, but that status, his ultimate designation, is neither affected nor determined by that (POW) designation," Senor explained, noting "until further information comes forward, that is his status."
That doesn't seem right. It looks like the political and legal arms of the Pentagon aren't talking, or maybe they're not in agreement yet. Even if evidence comes out that Saddam committed "crimes against humanity" (and his prior bad acts surely qualify), that doesn't affect his status as a POW. Nor does it really make an iota of difference if what we really want to do is repatriate him so the Iraqis can try him. I'm not sure why the Pentagon is hiding the ball on this one; it seems relatively straightforward to me.

Indeed, more evidence of Saddam's 'crimes against humanity' could only frustrate the current U.S. plan to let Iraq try (and possibly execute) him. The Iranian, Turkish, and Kuwaiti governments all have significant interests in trying Saddam, as do the Kurdish people and other groups. U.S. military courts may also want to try him for his unlawful use of unconventional warfare (e.g. the Fedayeen Saddam disguised as civilians) during the second Gulf War. The more evidence we produce of these other crimes, the more pressure we create for an international trial. And that's the one thing that our government has said it doesn't want.

Friday, January 9, 2004

Pentagon decides that Saddam Hussein is a POW

CNN reports that the Pentagon has officially designated Saddam Hussein a prisoner of war, subject to the 3rd Geneva Convention Relative to Treatment of Prisoners of War. This is more than just legal hair-splitting -- this designation carries a litany of legal implications, from his ability to be interrogated to his rights at trial. But apparently, the issue remained in play until late today when the Pentagon's lawyers agreed on a course of action. (Note: the AP reports that not all senior administration officials are on the same sheet of music with respect to Saddam's status.)
The announcement follows a day of confusion over Saddam's status.

The conflict began when officials in the Pentagon general counsel's office told reporters that there had been no formal declaration of Saddam as a prisoner of war and that there is no requirement to make such a declaration.

But at the same time, the officials said, the deposed leader is a prisoner of war based on the fact that he is the former head of an enemy military force who was captured on the battlefield during a declared conflict.

The Pentagon continued to avoid publicly calling Saddam a prisoner of war until early Friday evening.

One reason of avoiding the POW label is the question of whether it can be proved that Saddam participated in the postwar insurgency. That factor could affect any charges brought against him.

Bush administration officials had avoided formally calling Saddam an enemy prisoner of war, pending a legal review.

Saddam has been held and treated under the POW conditions prescribed by the Geneva Conventions since his capture in December.
Analysis: This whole issue is a little odd for anyone who's followed the Geneva Convention for more than the last two years. First, there is a rebuttable presumption in international law that all prisoners are prisoners of war under the Geneva Convention. Normally, the capturing force would convene competent tribunals (typically a group of mid-level military officers) to decide prisoners' status as they are processed. Despite his crimes, Saddam probably qualified for POW status from day one, as the commander-in-chief of a national armed force that was vanquished in battle. (See Art. IV for the ways one can be defined as a POW) But we never said this, or held a tribunal to decide otherwise. Instead, we asserted from day one that there was some doubt as to his status, yet we did nothing to resolve that doubt. In essence, it seemed like we had our international law backwards, because we assumed from the outset that he was not a POW -- instead of the other way around.

Second, this whole thing seems odd because the issue of POW status really doesn't matter for our purposes. If he's a POW, then it's perfectly legal to repatriate him back to the Iraqi government this summer so that they can try him. (See my piece "Trying Saddam" for the likely course of action.) Indeed, that's precisely the result compelled by the 3rd Geneva Convention, which commands repatriation at the end of hostilities. Alternately, if we wanted to set up an International Criminal Tribunal (Iraq) like the Int'l Criminal Tribunal (Yugoslavia) now trying Slobodan Milosevic, there is nothing about Saddam's POW status that would prevent that either. For what it's worth, most of the Nuremburg defendants were considered POWs as well, although their captivity pre-dated the existing Geneva Conventions and their formal definitions. You can try a POW for war crimes, committed either during hostilities or captivity.

So, at the end of the day, this is really much ado about nothing. Whether he's a POW or not, the U.S. and Iraqis get to try Saddam. Designating him as a POW probably makes it easier to do so, and it adds the legitimacy of the International Red Cross and international human rights law to the mix.
Update: Supreme Court grants cert to Yaser Hamdi

The Washington Post reports today that the Supreme Court granted review to the case of Yaser Hamdi, an "enemy combatant" being held in South Carolina by the Defense Department without access to counsel or the right to petition for habeas corpus. Hamdi v. Rumsfeld was originally decided by the 4th Circuit Court of Appeals, and is one of a few such cases currently percolating up through the courts. (Thanks to How Appealing for the case links)
Hamdi was captured in Afghanistan in late 2001 along with other suspected Taliban fighters. According to the Justice Department, he told military authorities he was there to "train with and, if necessary, fight for the Taliban."

Originally held with other detainees at Guantanamo Bay, Cuba, he was transferred to a Navy brig in Charleston, S.C., after the government learned that he was born in Louisiana.

His father appealed the detention in the federal courts, but was told by the U.S. Court of Appeals for the Fourth Circuit that it would not interfere with what it called the president's broad powers to protect the national security.

"The practice of capturing and detaining enemy combatants is as old as war itself," U.S. Solicitor General Theodore Olson wrote in unsuccessfully urging the Supreme Court to deny Hamdi's appeal. "There is no obligation under the laws and customs of war for the military to charge captured combatants with any offense."

The court has already agreed to decide whether U.S. courts can hear challenges by non-citizens seized abroad after the Sept. 11, 2001, terrorist attacks and held at the Guantanamo Bay Naval base.

Most legal observers also believe the justices will likely review a separate appeals court ruling from New York in the alleged "dirty bomb" case of Jose Padilla, who has also been held without a hearing or legal representation.
Analysis: First, a note to the NYT editors: your insta-story gets it wrong about the first case the court granted review of. Your story says:
The justices have already agreed to look at a another case involving detentions in the campaign against terrorism, decided on Dec. 18 by the United States Court of Appeals for the Ninth Circuit, based in San Francisco. That court declared that the administration's policy of imprisoning some 660 noncitizens captured in the Afghan war on a naval base in Guantanamo Bay, Cuba, without access to United States legal protections was unconstitutional as well as a violation of international law.
That's not right. The case before the Supreme Court is Al-Odah v. United States, from the D.C. Circuit Court of Appeals -- not the 9th Circuit. The case from the 9th Circuit is Gherebi v. Bush, and though it raises much the same issues as Al-Odah, it is not before the Supreme Court. Also, your story gets the issue wrong. The Supreme Court has only granted review on a narrow issue, namely, whether federal courts have jurisdiction to hear challenges from men detained at Guantanamo Bay. Padilla v. Rumsfeld, the case from the 2nd Circuit, raises some of the same issues but it's also a wholly separate case from these others. Hopefully Linda Greenhouse corrects this part of the story before it makes it into Saturday's paper. (Also, I'd hate to see some pundit predicting the outcome on the basis of the 9th Circuit angle, because that would be patently wrong.) Update: Linda Greenhouse did indeed correct this error in her story, which ran in Saturday's paper. This may only be an issue to news junkies like me, but I've noticed problems like this in a lot of the insta-stories that the NYT rushes to its website. I know that competes with and the AP wire, but it seems like this rush to publish make actually dilute the NYT brand name (if that's possible after Jayson Blair).

As for the substantive analysis, I agree with the Post that this marks a reversal for the Bush Administration's strategy in the war on terrorism -- but not necessarily a big one. My read of these cases is that the Administration's all-or-nothing strategy is untenable, but that a lesser position may still be defensible. (See this 12/19/03 post for more analysis.) Right now, the Administration is arguing that it has the right to detain persons (citizens and non-citizens) as enemy combatants pursuant the law of armed conflict, and that the Art. III courts don't even have the jurisdiction to review such determinations or detentions. I think the first part of this argument will be upheld as part of the President's Art. II power as Commander-in-Chief. The second part probably won't be upheld. And thus, the Administration will win on the merits in these cases. But in the future, the executive branch may have to justify its designations and detentions to an independent Art. III court. That review may take a variety of forms, with any number of legal standards. But I think the Supreme Court will demand judicial review of these decisions in some way. It remains to be seen how.

Update: Eugene Volokh has the questions presented by Hamdi's lawyers in their petition certiorari, which the Supreme Court granted.
(1) Does the Constitution permit Executive officials to detain an American citizen indefinitely in military custody in the United States, hold him essentially incommunicado and deny him access to counsel, with no opportunity to question the factual basis for his detention before any impartial tribunal, on the sole ground that he was seized abroad in a theater of the War on Terrorism and declared by the Executive to be an "enemy combatant"?

(2) Is the indefinite detention of an American citizen seized abroad but held in the United States solely on the assertion of Executive officials that he is an "enemy combatant" permissible under applicable congressional statutes and treaty provisions?

(3) In a habeas corpus proceeding challenging the indefinite detention of an American citizen seized abroad, detained in the United States, and declared by Executive officials to be an "enemy combatant," does the separation of powers doctrine preclude a federal court from following ordinary statutory procedures and conducting an inquiry into the factual basis for the Executive branch?s asserted justification for the detention?
As Eugene notes, these are posed by Hamdi's lawyers so they're obviously argumentative; there's also no guarantee the Court will opine on all of these questions. However, they at least bespeak the way that Hamdi's lawyers see the issue. And if the Court does opine on all 3 of these questions, then this case will have very far-reaching implications for the U.S. legal strategy in its war on terrorism.

More to follow...
The big move begins

The Washington Post reports this morning that the largest troop movement since WWII and the Korean War has begun in Southwest Asia. Some units are beginning the long march home, starting with a stop in Kuwait to return pre-positioned equipment, clean/repair equipment, and go through a military form of Customs in order to leave the country. Over the next 6 months, more than 100,000 troops will flow in to Iraq to replace those currently serving there.
The turnover of troops, intended to substitute fresh U.S. forces for the battle-tested ones that have spent up to a year at war, poses enormous logistical burdens. Scheduled to last between now and May, the operation is unusual not only for its large scope and compressed timetable but also for its need to transport sizable numbers of troops into and out of combat zones at the same time.

"It's the biggest one we've ever had in some respects," Lt. Gen. Franklin "Buster" Hagenbeck, chief of Army personnel, said in an interview. He predicted "hiccups along the way" but added: "It's going to work."

In addition to the sheer difficulty of coordinating transportation, housing and other needs for so many troops, the mass transition also heightens the security risks for U.S. service members in Iraq, who continue to face daily attacks from insurgents.

Plans call for ferrying many troops into and out of Iraq by plane to lessen the possibility of enemy assaults on long ground convoys. But the reported attack yesterday on a U.S. Air Force C-5 cargo jet, suspected of being hit by ground fire as it took off from Baghdad International Airport, underscored the danger of relying on air transport.

Top U.S. military authorities have confessed to being worried about the huge rotation. But they have also said the operation has received extensive high-level reviews and will be bolstered by extra security measures.

Disclosing one such measure in a briefing to a group of reporters yesterday, a senior Army officer said a military team has gone to Iraq to explore ways of coping better with the makeshift, roadway bombs that have become a prime cause of U.S. military casualties. Made up of explosives experts, the team plans to perform forensic studies of actual attacks and to help develop tactics and improved technical means of detecting and defeating the improvised devices.

"The enemy gets a vote," the officer said, referring to the prospect that attacks by insurgents could disrupt the rotation schedule. "We owe it to all these soldiers not to rush through this thing. We have to do this thing right because it's still a dangerous place."
Analysis: Security is the predominant risk in this rotation plan.
This is the kind of situation that every 4th Generation foe prays for at night. It sets up a situation where the soft targets (e.g. transportation hubs, shipping depots, ports, etc) are critical to our war effort, and where an attack on those soft targets can have disproportionately large disruptive and destructive effect. Second, this rotation brings in fresh units (although many have combat veterans in them who rotated back as individuals or small units), and those fresh units must now climb the Iraqi learning curve. In one sense, their guard will be up and they'll be less likely to make mistakes of fatigue. In another sense, they won't know the terrain as well and that may make them vulnerable. In either case, look for an increase in guerilla attacks directed at this rotation. It's just too good a target for the enemy to pass up.

There are other risks too. The move will swallow up a great portion of America's "strategic lift" capability, meaning things like C-5/C-17 airplanes and large container ships. It will also gobble up a lot of rail and trucking capacity in the U.S., as well as the full attention of logisticians around the world. This may impede some of the other logistical functions necessary to sustain the force, like the flow of spare parts and new end items. I am sure this system can maintain the current flow of those items. But if there's a need to surge any particular item, such as Bradley tracks or ammunition, that need may go unmet. It's a risk, but one that can probably be mitigated.

Unit rotation is the right thing to do for a variety of reasons -- unit cohesion being chief among them. (See Path to Victory by Don Vandergriff for more on why.) We saw the value of unit cohesion in units like the 3rd Infantry Division, which had a de facto unit-manning system by virtue of its early deployment to Kuwait which left it stabilized in the desert with the same personnel for nearly a year before the war. We also saw its virtue in the 101st Airborne Division (Air Assault), which brought many of its combat veterans from Afghanistan with it to Iraq. Ultimately, the wisdom of this rotation rests with the idea that this unit cohesion is more valuable than any risks posed by the rotation. I think that's right -- solid platoons and companies led by competent battalion and brigade staffs are exponentially more effective than any individually-replaced force (see, e.g., the U.S. Army in Vietnam).

Thursday, January 8, 2004

White House asks high court to "fast track" Padilla case

Joint Hamdi-Padilla case could create the 'mother of all Supreme Court decisions in 2004'

Charles Lane reports in the Washington Post that the White House (via the Solicitor General at the Justice Department) will ask the Supreme Court to expedite its review of Padilla v. Rumsfeld. That was the decision handed down by the 2nd Circuit late last year which ordered the Pentagon to release Jose Padilla (alleged Al Qaeda "dirty bomber") within 30 days and charge him in civilian criminal court. Interestingly, this request comes at a time when lawyers for detained enemy combatant Yaser Hamdi are also requesting review from the court, and the SG's brief all but asks the Court to grant joint review of the two cases in order to resolve the "enemy combatant" issue once and for all.
In a brief filed with the court and simultaneously released to the media, Solicitor General Theodore B. Olson informed the justices that by Jan. 20 he will file his appeal of a New York-based federal appeals court's ruling last month ordering the government to either charge or free Jose Padilla, a U.S. citizen allegedly linked to al Qaeda who has been held incommunicado as an "enemy combatant" since shortly after his arrest in Chicago 19 months ago.

Olson added that he will contact Padilla's lawyers to reach agreement on a schedule that would let the Supreme Court hear the oral argument by the end of April and issue a ruling before its recess in early July.

The administration made its request, which skips a possible appeal to the full membership of the U.S. Court of Appeals for the 2nd Circuit, Olson wrote, because that court's "decision . . . incorrectly resolves issues of extraordinary public significance."

The request comes in the wake of lower courts' rulings rejecting the Bush administration's assertions of executive authority in the war on terrorism, on the grounds that they threaten civil liberties. The Supreme Court itself recently rebuffed the administration by agreeing to hear an appeal by foreign terrorism suspects detained on the U.S. naval base at Guantanamo Bay, Cuba.

* * *
Olson's request came just two days before the justices were scheduled to hold their first conference on whether to hear an appeal similar to Padilla's by Yaser Esam Hamdi, a U.S. citizen captured by U.S. forces in Afghanistan. Hamdi has also been detained for more than a year without access to a lawyer in the South Carolina naval brig where Padilla is being held.

Last year, the Richmond-based U.S. Court of Appeals for the 4th Circuit upheld President Bush's authority to declare Hamdi an enemy combatant, based largely on the fact that, unlike Padilla, he had been detained on a foreign battlefield. The Bush administration has strongly urged the Supreme Court not to accept his appeal.

The administration has maintained that the 2nd Circuit's ruling in Padilla's case does not undercut its position in Hamdi, but a brief filed Monday at the court by Hamdi's lawyers argued the opposite.

In his brief yesterday, Olson again argued that the 2nd Circuit's ruling did not weaken his case in Hamdi, but seemed to acknowledge that the price of getting expedited consideration of his Padilla appeal would be some form of joint review of the two cases.

He suggested that the court defer consideration of the Hamdi appeal until the government's Padilla brief comes in, then look at both cases at the same conference, adding that the government's brief will "address the interrelationship between the questions presented by the government's petition in Padilla and the Fourth Circuit's decision in Hamdi."
Analysis: We're about to see a cataclysmic event in the U.S. Supreme Court. The decision in a joint Hamdi/Padilla case on whether the President has the power to designate and detain enemy combatants could change the Constitutional landscape. It has the potential to affect the Constitutional separation of war powers, the Constitutional separation of law enforcement power, the 6th Amendment right to trial and counsel, the 5th Amendment right to due process, and more. It's possible that the Court will decide this case on some narrow ground, such as the jurisdictional right of U.S. courts to hear habeas corpus challenges from detained U.S. citizens. But I doubt that. There is clearly a circuit split between the 4th Circuit's decision in Hamdi and the 2nd Circuit's decision in Padilla, and there is a pressing need for the Court to resolve this issue.

Where could the Court go? My SWAG (super wild a**ed guess) on that subject is that the Court will uphold the President's right to designate and detain enemy combatants pursuant to his Art. II authority as Commander-in-Chief, essentially affirming Ex Parte Quirin and the 4th Circuit's decision in Hamdi v. Rumsfeld. The Court will also likely affirm its previous holding in Johnson v. Eisentrager which bars enemy aliens from bringing habeas corpus challenges in federal court. However, I think the Court will reverse the Bush Administration on some key issues in the Hamdi and Padilla cases. The Court will likely hold that U.S. citizens detained as enemy combatants have the right to challenge their detention in court via the writ of habeas corpus, and that they have some limited right to counsel to effectuate this right. My reasoning here is that the Court will use this to carve out some limited right of judicial review for these detentions, without stepping too strongly on the Administration's (legitimate) contention that it needs to detain such persons and interrogate them in order to pursue its compelling national security interests.

Political Analysis: This move is also significant for a couple of political reasons. This White House doesn't do anything without considering politics. Indeed, I think much of the legal strategy in the war on terrorism has been crafted with politics in mind. Here's what I think of the political calculus here:

(1) The Administration's hard-line stance in the war on terrorism has earned it a lot of criticism. The most extreme critics charge that the post-9/11 legal strategy has created a virtual police state in America where we have shredded the Constitution in the name of security. The more moderate criticism is that the Administration has leaned much farther forward on these issues that perhaps it needed to, arguing for instance that courts didn't even have the right to review designations of enemy combatants, let alone overrule them on them the merits. Some of the administration's top lawyers who have left the Justice Department have criticized these policies as "unsustainable" for legal and operational reasons.

I suspect they're also "unsustainable" for political reasons. John Ashcroft may be a good lightning rod for criticism, but in 2004, a lot more of this criticism is going to stick to the President. And you can bet that the Dean and Clark campaigns are figuring out ways they can exploit this issue for their own political advantage. (I would if I were them.) If you ask the average American whether they're willing to sacrifice some liberty in order to obtain security (I know, it's a false dichotomy), the polls say the average American will say yes. However, the same polls reveal that many Americans think this balance has gone too far, and that they're not willing to sacrifice basic freedoms like the right to be secure in their homes and to have their day in court.

The White House's hard-line language in these cases can and will be used against it in the court of public opinion. I can almost see the ads now, showing imprisoned Americans without access to courts or their families, quoting the DOJ legal briefs while flashing angry pictures of John Ashcroft and President Bush. These ads will make the 1988 Willie Horton ads look downright innocent by comparison. I suspect the White House wants to avoid this issue at all costs, because it has taken a hard line in the legal war on terrorism and it recognizes the political fallout of that decision. Arguably, it was necessary to push the envelope on these issues, because on 9/12/01 we didn't really have a handle on what the issues were. But as the 2004 election approaches, it's necessary to do some political damage control for those operational decisions.

(2) Asking for the Supreme Court's review is always a gamble, as the Administration has learned in a variety of cases. The so-called "conservative" Court does not always vote the way the GOP base wants it to. See, e.g., Lawrence v. Texas and Grutter v. Bollinger. However, the Administration is likely to prevail on a few key issues, like the overall ability to detain enemy combatants (subject to some judicial review). If the Administration can secure some judicial sanction for its war on terrorism, it will be able to bolster its legal strategy before the bar of public opinion. In theory, this decision could provide legal cover for the rest of the Administration's legal strategy. Of course, the Administration could lose bigtime. But if it does lose, then the GOP has another reason to rally against the courts -- a proven money-maker/vote-getter when it comes to the GOP's conservative base.
D.C. district judge allows military anthrax vaccinations to continue

After enjoining the Pentagon from conducting any vaccination of its personnel against anthrax last month, U.S. District Judge Emmet G. Sullivan issued a new order Wednesday allowing the Pentagon to resume its program -- except for the six named plaintiffs who sued for an injunction in his court against the shots. (See this note for discussion of the original decision) The change comes after an FDA policy change approving the military's vaccine for inhalation anthrax, and a Justice Department filing which blasted Judge Sullivan for extending his ruling to cover the entire military instead of the six named plaintiffs.
The judge, Emmet G. Sullivan of the United States District Court for the District of Columbia, ordered lawyers for the government and the plaintiffs to return in a week for a "status hearing" to discuss the next steps in what promises to be a protracted legal fight.

"We are disappointed, but not surprised that the injunction has been stayed for all but the six plaintiffs," said Mark S. Zaid, a lawyer for the six "John Doe" military or Pentagon personnel who brought the suit.

Mr. Zaid pledged further legal action to challenge the effectiveness of the vaccine, the way it is administered and the scientific basis cited by the Bush administration for its approval. "The government's victory today may only be fleeting," he said.

* * *
In issuing his preliminary injunction on Dec. 22, Judge Sullivan accepted the plaintiffs' arguments that the vaccine used in the Pentagon's mandatory program had been approved by the F.D.A. to protect against skin exposure to anthrax — but not against anthrax that is inhaled, the far greater battlefield threat. Thus, the judge said, the vaccine was an "investigational" drug being forced on the troops for an unapproved purpose.

The Pentagon halted the program the next day, pending clarification of the legal issues, and the day after that the Justice Department filed a motion asking the judge to withdraw the injunction — or at least limit his ruling solely to the six plaintiffs whose suit prompted it.
Analysis: Let's be clear about what did not happen here as a matter of law. Judge Sullivan did not change his decision on the merits of the case; indeed, there hasn't even been a trial on the merits of the case. (He did issue an injunction which assumed the probable success of the plaintiffs, but that's speculative.) This reversal was issued solely on procedural grounds, namely, that Judge Sullivan's order was too broad. It extended its holding to the entire class of military personnel in line to receive the vaccine, even though there was no formal plaintiff class certified.

Presumably, this case will now go forward. Recognizing his tactical error, Mr. Zaid has pledged to get a plaintiff class certified so that he can make this case applicable to the entire military. And I imagine that the DOJ will fight that tooth and nail -- and probably win. If this case ever makes it to trial on the merits, that will be really interesting. But I imagine the FDA decision last month to approve the vaccine post facto for use against inhalation anthrax will weigh pretty heavily on the finder of fact to decide for the Pentagon.

One last note: I think this case does a great deal of harm to those military personnel who have been vaccinated, or who are waiting to be vaccinated in anticipation of deployment. Granted, anthrax has not been used against U.S. military personnel, and it probably won't be. But the series of 6 anthrax shots is somewhat delicate, and this legal maneuvering has likely upset the vaccination protocol for thousands of soldiers in line to get the shots. When I got the vaccine in 1998, my unit's shot days were calibrated to the day in order to make sure we developed the right immunity. (We were in Korea, where the threat of chem/bio is probably higher than in Iraq.) Now that the injunction has been lifted, it will take some time for the order to filter down to subordinate units to restart the program; appointments will have to be rescheduled; security/duty rosters will have to be redrawn; etc. The secondary and tertiary effects of this litigation on the lowest levels of the military cannot be understated. For that reason, and because I think the vaccine is safe/effective, I think this litigation is a bad idea.

Wednesday, January 7, 2004

Book Recommendations

If you haven't read them already, I highly recommend the following couple of books, which I had the opportunity to read while I was on the East Coast for the winter holidays.

(1) The Best American Political Writing of 2003, edited by Royce Flippin. For a political news junkie like me, this was a great purchase. It pulled together some of the best writing on the most interesting topics of the last year or so. I was surprised how many of these I missed during the year, and now have some new authors to keep my eye on in 2004.

(2) Inside Al Qaeda: Global Network of Terror by Rohan Gunaratna. I've referred to Mr. Gunaratna's work before because I've used it as a reference, but until now, I've never read it cover-to-cover. There's a good reason why this guy is one of a few "go to" guys for CNN on the issue of terrorism: he knows his stuff. This ranks up there with Holy War, Inc. and Inside Terrorism as one of the best books around on the subject. Must read stuff.
Ralph Peters foams at the mouth

Another columnist uses the Nazi slur, this time against Howard Dean

Ralph Peters is a brilliant military analyst. A long time ago, I read his book War in 2020 and thought it was a brilliant piece of fiction and a brilliant piece of predictive analysis about what war would look like in the next generation. I have since read his essays and op-eds with interest, including those in his book Beyond Terror. But now I'm done reading his work. And here's why. (Thanks to Mark Lewis for the pointer)

In this op-ed for the New York Post, Peters doesn't just allude to a conceptual connection between Howard Dean and the Nazi party of pre-WWII Germany -- he expressly says it. And he does so in the most rabid way possible, with little reference to the law and the facts. Here's a sampling of his "argument":
One secular gospel of the left preaches that the Patriot Act has drastically curtailed American freedom. Free speech, the teacup Trotskys claim, is a thing of the past.

Whenever one of my forlorn leftie pals raises the issue, I ask him or her to cite a single example of how the Patriot Act has limited their personal liberty. They never can. Instead, they rail about what-ifs and slippery slopes.

But Howard Dean and his Deanie-weenies do all they can to restrict the free speech of others. I can predict with certainty that Dean's Internet Gestapo will pounce on this column, twisting the facts and vilifying the writer, just as they do when anyone challenges Howard the Coward.

Free speech, you see, is only for the left.

Dean wants to muzzle his Democratic competitors, too. He believes the Democratic National Committee should shut them up. His followers try to intimidate other presidential aspirants by surrounding the cars delivering them to their rallies and chanting to drown out their speech. Of course, Dean denies any foreknowledge or blame.

These are the techniques employed by Hitler's Brownshirts. Had Goebbels enjoyed access to the internet, he would have used the same swarm tactics as Dean's Flannelshirts.

* * *
Of course, I don't really see Howard Dean as a potential dictator - just another hollow man soiling the halls of power. And this is America. Our system is far stronger than any individual. Besides, even the vilest dictators have a vision of something greater than themselves. Howard Dean has nothing beyond ambition.

And a shameless disregard for the First Amendment.
Analysis: Oh really? Are you sure about that? As I learned First Amendment law, the exact opposite is true. As an initial matter, Howard Dean is not a state actor. Therefore, unless he sues someone for libel or invokes some other aspect of governmental power, he cannot create a First Amendment problem.

Second, Peters' invocation of the USA PATRIOT Act is off, and wrong as a legal matter too. Of course, the blame here lies with both the right and the left. Almost *no one* understands the USA PATRIOT Act, its details, its effects, or what it has done since its passage in Oct. 2001. The plain fact is that it's a very complicated piece of legislation, and that most
of its impacts have been very subtle. The Justice Department has also made this tougher by selectively releasing information about the Act, such as the number of times the "library-search" provision (Sec. 215) has been used. (0)

Ironically, most of the civil liberties abuses alleged by the government since 9/11 have not had anything to do with the USA PATRIOT Act. The detention of Muslims was conducted largely under the authority of 18 U.S.C. 3144, also known as "material witness" authority. Detentions and deportations were also carried out using immigration law authority that has been on the books for a while. The whole Gitmo/tribunal issue has nothing to do with the Patriot Act. And FISA searches have been on the books for a long time. (The Act did make a major change to the FISA rules, but it's not clearhow often that section has been used.) The Patriot Act is a convenient shorthand, though, for all of these issues. And that's why it's used in the debate on both sides.

Third, Peters has previously tried to claim the lineage of the classic American conservative, and has at times also tried to claim the lineage of a classic liberal (small-l liberal). Both of those groups embrace free speech as a central tenet of their political doctrine, believing that a "marketplace of ideas" is an important and vital part of democracy.

In the first half of the 20th Century, the "marketplace of ideas" concept emerged in the Supreme Court's free speech jurisprudence in a series of cases dealing with Communists who were arrested and charged with incitement. Dissenting powerfully in Abrams v. United States, Justices Holmes and Brandeis began a revolution in First Amendment law when they wrote that the best way to counter bad ideas was not to outlaw them, but to speak against them. "[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out." The marketplace of ideas would sort out the good from the bad ideas, and function much as the marketplace for goods and services. This has since become an accepted piece of American wisdom -- that free speech is good, that the marketplace of ideas is good, and that the best way to deal with bad speech is with good speech.

So, here's the point. If Peters is upset about Dean's "Internet Gestapo" coming to get him, he need not be. Dean's organization is simply acting in the great tradition of American free speech. When they see bad speech about there, they respond with good speech. They don't attempt to outlaw bad speech, or suppress it -- they only attempt to put
an alternate version of the facts/truth out there. I think that's the epitome of free speech.

Now, I'm no Howard Dean fan. He's taken his share of liberties with the facts, and I doubt I'll vote for him in California's open-primary. But I despise the kind of vitriol being thrown at him by Mr. Peters. I don't think it advances the ball, and I think it drags down our level of discourse to the lowest possible level. This 'blog post is a little far off the reservation for me; I usually stick to issues of law and military affairs that I know something about. But I thought it needed to be said. Maybe Mr. Peters should take the same advice, and stick to the national security issues he knows so well instead of using his op-ed voice in such a shameful way.