Tuesday, January 20, 2004

National security notes on the State of the Union address

In about 40 minutes, President George W. Bush will deliver his State of the Union address to a joint session of Congress, the American public, and the world. I'm anxious to watch the event and to see what President Bush says in his speech. I'm really curious what he's going to say about Iraq, and about America's national security generally. More to follow...

Update: Here are some initial thoughts on the speech, which I'm listening to right now and reading online via the Washington Post's transcript of the prepared text. (The Post also has the actual transcript of the speech as it was delivered up on its site.)

1. Guests of the First Lady. As one would expect, the gallery contains more military personnel this year than I've ever seen. Three of the soldiers caught my eye because they were wearing Army greens -- they're the three U.S. Army soldiers featured on the cover of Time magazine's "Person of the Year" issue designating the "American Soldier" as this year's person of the year. Later in the speech, when the President spoke to a military issue, the ABC cameras panned to these three soldiers.

2. Terrorism and complacency. The President makes a big point when he says there have been no attacks since 2001 on U.S. soil -- but that there have been many attacks overseas against U.S. interests and allies.
Twenty-eight months have passed since September 11th, 2001 -- over two years without an attack on American soil -- and it is tempting to believe that the danger is behind us. That hope is understandable, comforting -- and false. The killing has continued in Bali, Jakarta, Casablanca, Riyadh, Mombassa, Jerusalem, Istanbul, and Baghdad. The terrorists continue to plot against America and the civilized world. And by our will and courage, this danger will be defeated.
The point of this is that America cannot afford to become complacent. Therefore, the President says, we should continue to give America's security community the tools it needs to fight terrorism, namely, the USA PATRIOT Act. Here's what he had to say:
Inside the United States, where the war began, we must continue to give homeland security and law enforcement personnel every tool they need to defend us. And one of those essential tools is the PATRIOT Act, which allows Federal law enforcement to better share information, to track terrorists, to disrupt their cells, and to seize their assets. For years, we have used similar provisions to catch embezzlers and drug traffickers. If these methods are good for hunting criminals, they are even more important for hunting terrorists. Key provisions of the PATRIOT Act are set to expire next year. [A smattering of applause fills the hall at this point.] The terrorist threat will not expire on that schedule. Our law enforcement needs this vital legislation to protect our citizens -- you need to renew the PATRIOT Act.
Analysis: This is very interesting. Many legal scholars and political observers see this piece of legislation as a political albatross for the administration -- a lightning rod for criticism that the Bush Administration doesn't respect American civil rights or civil liberties. It looks like the President is going to come out swinging on this point, and I'm not sure how that's going to go over. As a policy matter, I support most of the measures in the USA PATRIOT Act, because of my understanding of how they work and how law enforcement uses these tools today. But I also recognize that this Act has a tremendous political cost, and I'm not sure the President has the political capital he had in October 2001 when he got this Act passed the first time.

Later in the speech, President Bush offers another interesting thought on the nature of the global war on terrorism. In the legal community, there has been a great debate for the last two years (and much longer in some sections) about the nature of this conflict -- and whether terrorism is a problem of law or a problem of war. Here's what the President had to say:
I know that some people question if America is really in a war at all. They view terrorism more as a crime -- a problem to be solved mainly with law enforcement and indictments. After the World Trade Center was first attacked in 1993, some of the guilty were indicted, tried, convicted, and sent to prison. But the matter was not settled. The terrorists were still training and plotting in other nations, and drawing up more ambitious plans. After the chaos and carnage of September 11th, it is not enough to serve our enemies with legal papers. The terrorists and their supporters declared war on the United States -- and war is what they got.
That's pretty unequivocal, but it's not that surprising. I've been reading the legal briefs from the Justice Department in the Hamdi, Padilla and Al-Odah cases, and this is the kind of rhetoric in every single brief about the nature of the war on terrorism. By invoking the war paradigm, the President may be able to employ the powers typically reserved for a Commander-in-Chief in wartime. I'm not sure whether the Supreme Court will uphold the President's vision in the Al-Odah and Hamdi cases which it has agreed to review. But this President's vision is clear, and it has been one of the defining hallmarks of the way the legal war against terrorism has been conducted.

3. The Global War on Terrorism, and America's Strategy of Preemption. At various points in the speech, President Bush says that America will continue its aggressive foreign policy which has led to the war in Iraq and efforts to disarm Iran and North Korea with diplomacy. The President also cites Libya as an example of how the preemption strategy has worked, and how the example of Iraq has made other regimes think twice about holding onto WMD. Later in the speech, the President effectively draws a line in the sand over diplomacy, saying that America will do what it has to do, notwithstanding what other nations and institutions say. It's a pretty strong part of the speech, and one that will probably go over poorly with Europe and others in the international community.
As part of the offensive against terror, we are also confronting the regimes that harbor and support terrorists, and could supply them with nuclear, chemical, or biological weapons. The United States and our allies are determined: We refuse to live in the shadow of this ultimate danger.

* * *
Because of American leadership and resolve, the world is changing for the better. Last month, the leader of Libya voluntarily pledged to disclose and dismantle all of his regime's weapons of mass destruction programs, including a uranium enrichment project for nuclear weapons. Colonel Qadhafi correctly judged that his country would be better off, and far more secure, without weapons of mass murder. Nine months of intense negotiations involving the United States and Great Britain succeeded with Libya, while 12 years of diplomacy with Iraq did not. And one reason is clear: For diplomacy to be effective, words must be credible ? and no one can now doubt the word of America.

Different threats require different strategies. Along with nations in the region, we are insisting that North Korea eliminate its nuclear program. America and the international community are demanding that Iran meet its commitments and not develop nuclear weapons. America is committed to keeping the world's most dangerous weapons out of the hands of the world's most dangerous regimes.

* * *
Some in this chamber, and in our country, did not support the liberation of Iraq. Objections to war often come from principled motives. But let us be candid about the consequences of leaving Saddam Hussein in power. We are seeking all the facts -- already the Kay Report identified dozens of weapons of mass destruction-related program activities and significant amounts of equipment that Iraq concealed from the United Nations. Had we failed to act, the dictator's weapons of mass destruction programs would continue to this day. Had we failed to act, Security Council resolutions on Iraq would have been revealed as empty threats, weakening the United Nations and encouraging defiance by dictators around the world. Iraq's torture chambers would still be filled with victims -- terrified and innocent. The killing fields of Iraq -- where hundreds of thousands of men, women, and children vanished into the sands -- would still be known only to the killers. For all who love freedom and peace, the world without Saddam Hussein's regime is a better and safer place.

Some critics have said our duties in Iraq must be internationalized. This particular criticism is hard to explain to our partners in Britain, Australia, Japan, South Korea, the Philippines, Thailand, Italy, Spain, Poland, Denmark, Hungary, Bulgaria, Ukraine, Romania, the Netherlands, Norway, El Salvador, and the 17 other countries that have committed troops to Iraq. As we debate at home, we must never ignore the vital contributions of our international partners, or dismiss their sacrifices. From the beginning, America has sought international support for operations in Afghanistan and Iraq, and we have gained much support. There is a difference, however, between leading a coalition of many nations, and submitting to the objections of a few. America will never seek a permission slip to defend the security of our people.
Analysis: So, we're not going to see any change in the way that America does business. I agree that America ought to take a leadership role in the world, and that we ought to do the right thing even when the UN Security Council doesn't sign on. Kosovo was one such war, and there will doubtless be more in the future. But the aftermath of Iraq has shown us the value of international help, and we ought not spit in the face of the international community so brazenly. One line stands out in particular: "America will never seek a permission slip to defend the security of our people." That's a given -- Art. 51 of the UN Charter states clearly that every state has the inherent right to self defense. But I think it's wrong to put this kind of a marker down on the table; it undermines every international institution that stands for the rule of law over nations -- even the institutions we subscribe to like NATO.

4. Iraq and Afghanistan. The President obviously wanted to tell an optimistic -- but realistic -- story about the struggle to build a new Iraq. I think he did a pretty good job of doing so, though I think he downplayed the nature of the threat there. The President also talked about Afghanistan a great deal -- almost disproportionately for the amount of spirit, blood and treasure the U.S. has invested there right now.
The first to see our determination were the Taliban, who made Afghanistan the primary training base of al-Qaida killers. As of this month, that country has a new constitution, guaranteeing free elections and full participation by women. Businesses are opening, health care centers are being established, and the boys and girls of Afghanistan are back in school. With help from the new Afghan Army, our coalition is leading aggressive raids against surviving members of the Taliban and al-Qaida. The men and women of Afghanistan are building a nation that is free, and proud, and fighting terror -- and America is honored to be their friend.

Since we last met in this chamber, combat forces of the United States, Great Britain, Australia, Poland, and other countries enforced the demands of the United Nations, ended the rule of Saddam Hussein -- and the people of Iraq are free. Having broken the Baathist regime, we face a remnant of violent Saddam supporters. Men who ran away from our troops in battle are now dispersed and attack from the shadows.

These killers, joined by foreign terrorists, are a serious, continuing danger. Yet we are making progress against them. The once all-powerful ruler of Iraq was found in a hole, and now sits in a prison cell. Of the top 55 officials of the former regime, we have captured or killed 45. Our forces are on the offensive, leading over 1,600 patrols a day, and conducting an average of 180 raids every week. We are dealing with these thugs in Iraq, just as surely as we dealt with Saddam Hussein's evil regime.

The work of building a new Iraq is hard, and it is right. And America has always been willing to do what it takes for what is right. Last January, Iraq's only law was the whim of one brutal man. Today our coalition is working with the Iraqi Governing Council to draft a basic law, with a bill of rights. We are working with Iraqis and the United Nations to prepare for a transition to full Iraqi sovereignty by the end of June. As democracy takes hold in Iraq, the enemies of freedom will do all in their power to spread violence and fear. They are trying to shake the will of our country and our friends -- but the United States of America will never be intimidated by thugs and assassins. The killers will fail, and the Iraqi people will live in freedom.

* * *
And the men and women of the American military -- they have taken the hardest duty. We have seen their skill and courage in armored charges, and midnight raids, and lonely hours on faithful watch. We have seen the joy when they return, and felt the sorrow when one is lost. I have had the honor of meeting our servicemen and women at many posts, from the deck of a carrier in the Pacific, to a mess hall in Baghdad. Many of our troops are listening tonight. And I want you and your families to know: America is proud of you. And my Administration, and this Congress, will give you the resources you need to fight and win the war on terror.
Analysis: Obviously, the President wanted to tell a 'good news' story about the progress of the war on terrorism in its two combat theaters, Iraq and Afghanistan. But let's take a closer look at what was said and not said. The President never mentioned Osama Bin Laden -- not once. But he mentioned Saddam Hussein plenty of times. Osama's name is conspicuous by its absence, and indeed, the President did not really speak in much detail about Al Qaeda at all. However, he framed everything about Iraq in terms of the global war on terrorism, and the need to change this regime so that it could not support terrorism or acquire weapons of mass destruction. Given the lack of fidelity in our intelligence about those two matters, I was surprised to see this focus in the President's speech.

Second, while Afghanistan is certainly better off today than it was in 2001, it is not as well off as it should be. I don't think it's true that we have completely shifted our focus away from Afghanistan to fight in Iraq, and that we have completely neglected this nation that incubated Al Qaeda. But I do think that we have not met our burden for the reconstruction of Afghanistan, and that we have missed many opportunities over the past two years. That said, I don't think this issue (or this country) has much traction in the minds of the American public. Events in Iraq have reduced Afghanistan to an operational and political sideshow, and I think that President Bush is okay with that.

Third, the President made no mention of the casualty count in Iraq, or the heavy cost that America may yet have to pay in order to stabilize that country. It makes some political sense to downplay those statistics, and to focus on good news metrics like the number of schools constructed. But by ignoring the negative news, the President made himself seem less credible as well. He also missed the opportunity to gird the American public for future sacrifice, and to justify the sacrifices made thus far to the American public. Right or wrong, the most visible metric for the American people right now is the number of American KIA in Iraq. I don't think the Commander-in-Chief should have completely ignored that.

Finally, the President pledged to give soldiers the resources they need to fight the war on terrorism. I thought this part was well said, and that Congress and the President should give our soldiers what they need. That's a no-brainer. It's very hard to prioritize the defense budget when almost everything has some reasonable purpose -- and where many things are thought to be mission-essential. But the really hard part is to make the tough decisions about when and where to employ our military so that the military's capabilities aren't overtaxed by the missions we give them. With so much of our military now committed to Iraq and Afghanistan, we need to think really hard about any future endeavors abroad. It's not that we can't afford it -- we probably can if we mobilize large numbers of reservists and blow apart the federal budget. It's about asking whether this price is worth it.
"Velvet gloves" in Iraq -- a second opinion

LTC Gian Gentile, a graduate of the Army's School of Advanced Military Studies who recently served as XO of the 1st Brigade, 4th Infantry Division in Iraq, writes in the Washington Post that the much-touted strategy of "velvet gloves" might deserve a little bit more thought before being put into effect in Iraq. (Full disclosure: I worked for LTC Gentile on the 4ID plans staff as a young captain, and think he's one of the most brilliant officers I ever had the chance to work for/with in the Army.) This approach has been hyped by the Marine Corps generals on their way to Iraq in the next few months to replace Army units now there, and this hyping has been criticized by many Army officers who have said that such tactics may not work in the most hostile parts of the nation. LTC Gentile, whose former unit continues to operate in these hostile parts of Iraq, offers some thoughts on the "kindler, gentler" approach to counterinsurgency.
When the 1st Brigade assumed control of Tikrit and its surrounding area in the Sunni Triangle, our approach was in some ways very different. While we immediately began the important work of rebuilding infrastructure and institutions, we intentionally took a hard approach toward hunting down former regime members and stopping the looting of weapons and ammunition.

On the first night of operations in Tikrit, the brigade's infantry battalion sent out a combat patrol into the northern part of the city. It came across some 30 Iraqi terrorists looting military goods such as rocket-propelled grenades and mortar rounds. The Iraqis opened fire, and a sharp firefight ensued. Fifteen Iraqi terrorists were killed and the looting was stopped.

Was this approach "hard" compared with that of the Marines? Yes. In this case, did it stop the looting and even the potential of remote-controlled mines and rocket-propelled grenades getting into the hands of terrorists trying to kill Americans? Absolutely. Had these kinds of activities by Iraqi terrorists been going on in Tikrit while the Marines were applying their velvet glove? Undoubtedly.

The brigade also started raids in late April against former regime members and other incipient terrorist groups. These military operations, coupled with an aggressive campaign to build an intelligence picture of former regime members operating in the Sunni Triangle, contributed significantly to the capture of Saddam Hussein a few weeks ago.

But the 1st Brigade Combat Team as well as the rest of the Army units operating in the Sunni Triangle and Baghdad have done more than just conduct raids and capture the former Iraqi president. They have, among many other things, rebuilt schools, delivered fuel, increased electrical power capacity and, most important, developed strong relationships with Iraqi Sunnis in the region. This approach has not been perfect, but the progress is steady and significant.
Analysis: This provides a useful counterpoint to the strategies now being suggested for the pacification of Iraq by the U.S. Marine Corps and others, as reported here by the Wall Street Journal (subscription required), and here by Tom Ricks of the Washington Post. I've been somewhat guilty of praising the Marines for this approach, echoing the sentiment of one MP commander who said in Ricks' article that "I love our Army, and I will not criticize it, but war is not free of mistakes, and I believe that some of the insurgency is due to families acting out against American forces for deaths occurring as a result of collateral damage." But I think that LTC Gentile offers a good glimpse of the other side, namely:

(1) Counterinsurgency is a tough business; and
(2) Superior firepower can be the right solution in certain situations, and may be the right answer in the worst parts of Iraq; and
(3) Taking the softer approach in Iraq can expose American soldiers to great risk, and the attendant casualties may be more than the American public is willing to pay for the pacification of Iraq.

This last point is most important -- and it's the most underplayed in all the articles which cover the Marine Corps and its "new" approach for Iraq. When you tell your soldiers to take off their Kevlar helmets and body armor, you ask them to incur a substantial risk. When you task organize a foot patrol without vehicle support, or send HMMWVs in without armor, you incur substantial risk. I think this is a risk that should be very carefully considered, because our soldiers are our most precious resource and we can't afford to waste them on novel ideas that will simply get them killed.

Friday, January 16, 2004

Admin note
: I'm working on an article on the limits of the Bush Administration's pre-emption strategy, and a couple of other projects. Consequently, I won't be writing anything new for Intel Dump until Tuesday. Hope to see you back then.
The Supreme Court v. The President

Anthony Lewis has a great essay today on the NYT op-ed page which provides some of the context behind the Supreme Court's decision to take the Hamdi v. Rumsfeld case, and its likely decision to take the Padilla v. Rumsfeld case. Mr. Lewis has followed the Court for some time, and is the author of Gideon's Trumpet, a widely acclaimed book about the Court's landmark decision in Gideon v. Wainwright which established the right to counsel for the indigent. As a side note, Mr. Lewis' work has become such a part of the Court's history that it's featured at the National Constitutional Center in Philadelphia. Here's what he had to say about these cases:
Why did the court step in? There can be no sure answer, and of course what the court will ultimately decide is unpredictable. But one possible reason is that in both situations the administration's actions are direct challenges to judicial responsibility and power.

The court's willingness to confront the executive branch is not unlimited. This week it refused to review a decision upholding Attorney General John Ashcroft's right to keep secret the names of aliens arrested in a sweep after 9/11. But that turned on an interpretation of the Freedom of Information Act, not on a question of constitutional power.

The two cases the court has agreed to review involve more momentous issues. The indefinite quality of the war on terrorism, as President Bush calls it, may make infringements on individual rights more worrying. No one can define how or when this "war" will end. An American detained as an "enemy combatant" could be imprisoned for the rest of his life.

Two Americans have been held in solitary confinement as "enemy combatants" now for more than 18 months. Yaser Esam Hamdi was captured on or near the battlefield in Afghanistan. Jose Padilla was arrested at O'Hare International Airport in Chicago, when he flew in from overseas. Attorney General Ashcroft, judging him without a trial, said Mr. Padilla was a "known terrorist" who had planned to explode a "dirty bomb" in this country.

Both men have been under interrogation. They were denied the right to see a lawyer, and the Justice Department argued at one stage that giving Mr. Padilla access to counsel might disturb the atmosphere of dependence required for successful questioning. More recently the department, perhaps hoping to quiet objections in the legal community, has said that both men may see lawyers.

The idea of jailing someone forever on the say-so of the president, without a lawyer — as the administration still says it has the power to do — would probably strike most Americans as a violation of their rights: the right to have a trial of any alleged offense, to call witnesses and so on. The Fifth Amendment to the Constitution says that no person shall be deprived of "life, liberty, or property, without due process of law." Is due process in a time of terrorism whatever the president says it is?
Analysis: His argument is one of the most concise statements of the issue that I've seen, and I will likely pass this essay on to my class on Law & Terrorism to help contextualize some of the issues we're studying. On one level, these cases are about the individual defendants -- Hamdi, Padilla, and the men at Guantanamo appealing in Al-Odah. On a slightly more general level, these cases are about specific legal rules such as 18 U.S.C. 4001 or the right to petition the court for a writ of habeas corpus. But at their core, these cases are about power. Jurisdiction is not just a legal doctrine -- it is the foundation of the courts' power. Taken quite literally, the word means "the power to judge/say". The central issue in Hamdi, Padilla and Al-Odah is whether the courts have the power to review executive action of this sort. And ultimately, I think the courts will claim that power in these cases, because if they don't, the institutional consequences could be quite severe.

Thursday, January 15, 2004

Was Wes Clark relieved of his NATO command?

Glenn Reynolds says yes, and criticized retired Gen. Wesley Clark for his denial of this fact in an interview with Chris Matthews of Hardball. Mark Kleiman posed the question to me, and I answered that I didn't think he was formally relieved. In general, relieving a commander in the Army denotes a relief for cause -- not a discretionary rotation of officers like that used to replace Gen. Clark with Gen. Joe Ralston as SACEUR. But since I didn't have the facts handy, I opened my copy of Waging Modern War by Wes Clark which discussed the matter. Here's what Gen. Clark himself had to say about what happened:
From pages 408-412 of Waging Modern War (hardcover) by Wesley K. Clark:

. . . as we were dining with Lithuanian President Valdas Adamkus, a soldier from my communications team came to the table and interrupted the conversation. "Sir, General Shelton is on the phone and says he needs to speak to you on an urgent matter."

* * *

Shelton said it was all right, no secure phone was needed. He wanted to inform me that Secretary Cohen had made the decision that I would come out of my command in April 2000.

I stood there, stunned. Was I being relieved of duty? And why now? SACEURs (Supreme Allied Commander - Europe) were expected to serve at least three full years. They are usually asked to extend for a fourth. But now, having just completed my second year at NATO, I was being told that my term would end in nine months.

The timing of the phone call was a surprise as well. I had just been in the States for a conference with the other regional commanders in chief and had spent a full day with Hugh Shelton. He had said nothing.

* * *

I asked Shelton why Secretary Cohen had made this decision, and why now. To depart early, after public speculation during the war about my difficult relations with the Pentagon, would look bad for everyone. Were they just clumsy? Or was this the result of the buildup of bad feelings? Were they trying to get back at me? I was at a loss to understand.

Shelton explained that Joe Ralston, the Vice Chairman, was the only possible replacement for me as SACEUR, that his four years as Vice Chairman were to end in February, and so, by law, he would need to be in a new position within 60 days or he would be forced to revert temporarily to two-star rank. Therefore, I would have to come out early. Anyway, he went on, I had served longer than the average SACEUR.

It didn't wash. I was sure that legal arrangements could have been made to enable me to complete the three full years. And I knew that the excuses about the average SACEUR tenure weren't factual. So, was this just a way of easing me out early, without admitting it?

* * *

[Clark tries to call Shelton after the dinner to discuss the matter.]

But before I could reach Shelton, another call came in. "Sir, there's a, er, I think, Bill Graham, holding on the line for you. Would you like to talk to him first?" The communications officer sounded uncertain about the first name.

Graham? Senator Bob Graham? Don Graham, the publisher of the Washington Post? "OK," I said, "put him through."

"Hello, General. This is Bradley Graham of the Washington Post. I just heard that you were to be replaced next year by General Joe Ralston, and wondered if you could confirm it.

* * *

The [negative] publicity lasted for a few weeks, echoing through Europe. The White House denied responsibility, and there was reportedly a lot of internal heat about how the decision had been executed. [David Halberstam reports this too in his book War in a Time of Peace.] The President was asked about my removal in a press conference in Europe and expressed complete satisfaction with my performance. "I had nothing to do with it," he told me privately.
Analysis: Senior commanders, who used to be called regional "CinCs", serve at the pleasure of the President and Secretary of Defense. Title 10, Section 164, United States Code (10 U.S.C. 164) states the law on the assignment, powers and duties of combatant commanders like the SACEUR. These officers are much like senior political appointees -- they are appointed by the President. (Separately, such officers must be appointed by the President and confirmed by the Senate to their 4-star rank.) The President doesn't need cause to remove such an officer from his or her post, and the President can rotate them around like pieces on a chessboard at will. Granted, there was bad blood between Gen. Clark, Defense Secretary William Cohen, and Gen. Hugh Shelton. But these officers didn't have the goods to relieve Gen. Clark for cause -- and they didn't.

In a general sense, you can argue that pulling an officer out of command prematurely is a form of "relief", and semantically, you would be right. But the problem is that in the Army, "relief" is a term of art. AR 600-20, the Army Command Policy, defines "relief for cause" in paragraph 2-17. Bear in mind that this policy is written for junior commanders, and it technically doesn't apply to the SACEUR position. But I quote it because it defines "relief" as its used in the Army today. (Also see this Staff Judge Advocate memo on "relief for cause".)
2-17. Relief for cause

a. When a senior commander loses confidence in a subordinate commander's ability to command due to misconduct, poor judgment, the subordinate's inability to complete assigned duties, or for other similar reasons, the senior commander has the authority to relieve the subordinate commander. Relief is preceded with formal counseling by the commander or supervisor unless such action is not deemed appropriate or practical under the circumstances. Although any commander may temporarily suspend a subordinate from command, final action to relieve an officer from any command position will not be taken until after written approval by the first general officer (to include one frocked to the grade of brigadier general) in the chain of command of the officer being relieved is obtained. Any action purporting to finally relieve an officer from any command position prior to the required written approval will be considered for all purposes as a temporary suspension from assigned duties rather than a final relief from command for cause. If a general officer (to include one frocked to the grade of brigadier general) is the relieving official, no further approval of the relief action is required, however, AR 623-105 and AR 623-205 concerning administrative review of relief reports remain applicable.
This is a formal process, often compared to an administrative suspension or termination proceeding in the civil service system. There's a formal box on an Officer Evaluation Report where the rater can indicate that the report is being written pursuant to a "relief for cause", and such an OER must be accompanied by specific documentation of the reasons for such relief. (An officer even has the right to appeal such a report.) It's very rare, and it's generally done in egregious circumstances (e.g. a negligent commander gets a soldier killed or loses a major piece of equipment). According to this definition, I don't think Wes Clark was "relieved". According to Wes Clark's book, neither Secretary Cohen, General Shelton, nor President Clinton thought he was relieved either. What do you think?

Wednesday, January 14, 2004

FBI Chief: Administration plans tribunals for 9/11 plotters

Thursday's Washington Post reports on a slip-up of sorts by FBI Director Robert S. Mueller III, in which he told reporters at a lunch meeting that "tribunals" were planned for individuals like Khalid Sheikh Mohammed who were thought to have a direct role in planning and executing the Sept. 11 attacks. Within the law enforcement and military communities, "tribunal" is a term of art that denotes something quite different than a civilian trial. Specifically, it connotes the kind of proceeding envisioned by President Bush in his 13 Nov 01 executive order authorizing military tribunals for members of Al Qaeda. The FBI immediately issued a statement saying that Director Mueller didn't intend the slip-up to mean what it meant, but the cat had already escaped the bag and run down the street.
Mueller's comments, made in response to a reporter's questions at a news media luncheon in Washington, provide a rare hint of the direction the Bush administration might pursue in its treatment of key suspects in the terrorist plot, who have been held secretly and interrogated since their captures.

Mueller's remarks also appeared to bolster previous indications that the government is reluctant to attempt more criminal prosecutions like the one against alleged al Qaeda operative Zacarias Moussaoui, who has bedeviled federal officials with his courtroom antics and has brought the case to a halt with demands to call the alleged conspirators as witnesses.

During the lunch, sponsored by the Christian Science Monitor, Mueller said the FBI has been gathering evidence for use in a possible legal case against Mohammed and other detainees.

"I would expect that there would be tribunals at some point," Mueller said.

A Pentagon spokesman said no decisions have been made about trying Mohammed or any other suspects in the attacks on the World Trade Center and the Pentagon. A White House spokesman declined to comment. To date, military authorities have designated only six detainees at the U.S. military prison in Guantanamo Bay, Cuba, as eligible for the tribunals. The facility holds alleged al Qaeda and Taliban fighters.

Mohammed, who was captured by U.S. forces in Pakistan in March 2003, was al Qaeda's operations chief and is believed to have served as the mastermind of the plan to hijack the airliners that crashed into the World Trade Center, the Pentagon and a field in Pennsylvania.

Also in U.S. custody are Ramzi Binalshibh, who is accused of helping to organize the attacks, and Mustafa Ahmed Hawsawi, the alleged paymaster of the hijackers.
Analysis: As the Post article notes, these comments come at a very sensitive time. The Supreme Court has granted review of the case involving 12 prisoners from Guantanamo seeking review of their detention in federal court. The high court has also accepted the case of Yaser Hamdi, an "enemy combatant" being held without charges access to counsel in a South Carolina military brig. Two of my friends who are prominent Supreme Court watchers think the Court will also take the case of Jose Padilla, the alleged "dirty bomber" who is also being held as an "enemy combatant". None of these cases directly touch on the President's plan to use military tribunals to try Al Qaeda members. Until the tribunals are used, such claims aren't ripe for judicial review. But it is pretty evident that the Court's rulings in these other cases will have a substantial impact on the Administration's plans with respect to military tribunals. In light of that, I find it striking that the Administration would still plan to go ahead with the tribunals, instead of exercising a "tactical patience" by waiting for the Supreme Court to decide these cases.

I have written before on what I think the likely Constitutional challenges will be to any use of the military tribunal rules now in place. The Supreme Court allowed the use of such tribunals during and after World War II (see Ex Parte Quirin and Application of Yamashita), but that was a different time and a different Court. (It was, essentially, the same court that upheld the detention of U.S. citizens in Korematsu -- a decision which would hopefully come out differently today.) So I think these cases are a crap shoot for the Administration. The Court is almost certainly going to say that it has the jurisdiction to hear these cases. As was said 200 years ago in Marbury v. Madison: "It is emphatically the province and duty of the judicial department to say what the law is." We are at war, and our President deserves the deference due a Commander-in-Chief in the conduct of war. But such deference does not equal carte blanche, nor does it mean an abdication of judicial responsibility. Even in wartime, the President is sworn to act with the constraints of the Constitution.

If military tribunals come before the Supreme Court, the Court will likely also claim jurisdiction over the appeals from these proceedings. In doing so, they may invalidate the entire process, or at least the part of the President's order which precludes civilian review. It's hard to predict these kinds of things, but I feel certain that the courts will impose some limitations on this exercise of executive power. But we'll see -- more to follow.

Post Script: I taught Marbury v. Madison and Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) to my undergraduate students my American Law & Terrorism class. There's nothing like teaching Constitutional Law to help someone shake off the cynicism of law school. If I seem optimistic about the role of the court in the war on terrorism, it's probably the teacher in me speaking.
160,000 sets of Interceptor Body Armor on the way to Iraq

Lisa Burgess reports in Stars & Stripes that 160,000 Interceptor Body Armor systems are now en route to soldiers serving in Iraq and Kuwait, thanks to a Herculean effort by nine separate defense contractors to produce the items in response to demands for life-saving body armor.
This month's production run of the Interceptor tactical vests fulfills a promise to Congress by Army officials, who said that by January the service would have enough of the vests to outfit every soldier deployed to Iraq, according to Army spokesman Maj. Gary Tallman.

"Congress has been notified that the requirement has been met," Tallman said Friday.

Interceptor vests are the Army's best body armor. The $1,585 items are composed of layered sheets of Kevlar, with pockets in front and back for ceramic plates that protect vital organs. The vests are highly effective against ammunition and shrapnel. Soldiers wearing the vests in Iraq have been shot at point-blank range with AK-47s and lived to tell about it.

As units assigned to Iraq's first rotation make their way home through Kuwait, they will turn in their assigned vests to a central collection point at Kuwait's Camp Victory, Tallman said.

Those vests will be checked out and reissued to Operation Iraqi Freedom 2 personnel who are staging in Kuwait.
Analysis: Outstanding -- it's great to see the system work. Of course, it took a lot longer than it should have, and it should've never taken this kind of political and media attention to get soldiers such a mission-critical item. But the soldiers now have the IBAs they need, and that's what counts. I wrote back in September 2003 that the Pentagon should have procured this item for every man and woman in uniform; maybe now they will.
From the "I really hope this isn't true" file:

Army offers quid pro quo to female soldier: drop rape complaint, get discharged early

The Denver Post reports today on the latest part of a saga involving a female military police soldier at Fort Hood who alleged that she was raped by one of her fellow soldiers. Apparently, the female soldier wants out of the Army because of the trauma this event has caused, but she has been told that she can't leave the Army while charges are pending against her attacker.
"'In order for you to get out of the Army early, you need to drop the charges,"' military police officer Natalie Longee, 21, said she was told Friday by a commander. Longee, who reported being raped at Fort Hood, Texas, more than a year ago, said that since that time, she was deployed to Iraq for eight months without counseling and then forced to return to the same base, where she has repeatedly encountered her alleged rapist.

* * *
If Longee were to be discharged but continue to pursue her complaint, military charges still could be filed against the man.

In the meantime, Longee says she has encountered her attacker on base several times.

* * *
Longee said that although she does not want to drop the charges, she cannot handle the pressures of the situation anymore and wants out of the Army. "I'm tired of all this."
Analysis: Something's missing here. I don't think any commander would make this kind of quid pro quo offer to a soldier. For one thing, an early discharge really isn't in a commander's power unless certain administrative criteria are met, and even then, it takes a senior commander to recommend such an action. Second, no JAG officer in his/her right mind would ever give this kind of advice to a commander, and senior Army officers (especially MPs) tend to take JAG advice pretty seriously. That said, the underlying facts of this case are disturbing if they were true. It has long been said that unfortunately, our female soldiers have more to fear from their fellow soldiers than from the enemy when it comes to sexual assault. If the victim's allegations are true, then this is another tragic instance of that trend.