Tuesday, January 27, 2004

Law and terrorism
: David B. Rivkin Jr. and Lee A. Casey, two senior lawyers who served in the Reagan and Bush I administrations, have a series of op-eds in this week's Washington Times that deserve a read. The first article deals with the power to detain enemy combatants, and the second with the President's power to wage war on terrorism. Though these authors don't speak directly for the administration, they do articulate the basic rationale of the administration on many of these subjects. So their op-eds are useful for understanding the reasoning behind what have been very controversial legal positions.
White House changes tack on Iraq casus belli

James Risen, who covers the intelligence beat and other shadowy things, reports in the New York Times today that senior administration officials were distancing themselves from the argument that Iraq definitely had weapons of mass destruction before the war. No such weapons have been found yet, which has made many uneasy about their support for the war which was based on this alleged possession WMD and the imminent threat of Iraqi nuclear weapons production.
The evolving position followed criticism of the intelligence reports about Iraq from the C.I.A.'s former chief weapons inspector, David A. Kay, comments that increased pressure on the C.I.A. and intensified the political debate in Washington over who was responsible for shaping the prewar intelligence that President Bush used to justify toppling Saddam Hussein.

While Republican leaders have focused on the C.I.A. and how it gathered intelligence, Democrats have called for a close look at how the White House used that information.

On Monday White House officials were no longer asserting that stockpiles of banned weapons would eventually be found.

Scott McClellan, the White House spokesman, told reporters en route to an appearance by President Bush in Little Rock, Ark., that the administration would wait for the weapons search team, the Iraq Survey Group, to complete its work before drawing any conclusions about the quality of the intelligence available.

But he said that whatever the group's conclusions, Mr. Bush had done the correct thing in deposing Mr. Hussein because Iraq was clearly working on chemical, biological and nuclear weapons.

"We know he had the intention, we know he had the capability," Mr. McClellan said. "And, given his history and given the events of Sept. 11, we could not afford to rely on the good intentions of Saddam Hussein."
Analysis: The administration never relied on WMD as its only reason for war. Indeed, it wasn't even the best legal argument that it offered. Pentagon and State Department lawyers agreed that the best legal argument for the war was Iraq's material breach of the 1991 cease-fire, along with various other resolutions since then. The WMD issue was mostly a political one, meant to persuade people for whom law wasn't good enough, and to answer the question of "why now?"

I was one of those people who thought we would find WMD when we had the 101st Airborne combing the Iraqi countryside, and when we had total reign over the country so the Iraqis couldn't play their shell game. Now I'm not so sure. It's theoretically possible that Iraq has hidden its WMD so well that we can't find them. But that's unlikely, given the enormity of the resources we've devoted to this task -- human teams, technical means, hyperspectral imagery, etc. It is hard to find the proverbial needle in a haystack. But WMD give off a bigger signature than a needle -- and we know what that signature is, and how to detect it. In any event, I feel like I was misled about the arguments for the war, which I then parroted to my friends and readers. And though I still support the war for other reasons, this news is upsetting.

Monday, January 26, 2004

Federal judge overrules parts of a major anti-terrorism law

The AP reports tonight on an order issued late last Friday by U.S. District Judge Audrey B. Collins, who sits here in Los Angeles, that effectively voids key parts of the federal law prohibiting material support to terrorists or designated foreign terrorist organizations. Those two laws, 18 U.S.C. 2339a and 2339b respectively, were first adopted in 1996 as part of the Anti-Terrorism and Effective Death Penalty Act, and more recently amended by the USA PATRIOT Act in 2001. Judge Collins devotes a good chunk of her decision to jurisdictional issues such as standing and justiciability. But the real meat of her order starts on page 24, with her consideration of the plaintiffs' motion on Constitutional grounds for summary judgment. On page 28 of her order, Judge Collins states the following:
Having considered the parties' arguments and the relevant law, including the rulings in [Humanitarian Law Project] I, the Court concludes that the term "expert advice or assistance," like the terms "training" and "personnel," is not "sufficiently clear so as to allow persons of 'ordinary intelligence a reasonable opportunity to know what is prohibited.'" [Citations omitted] Defendants [the Justice Department] have failed to adequately distinguish the provision of "expert advice or assistance" from the provision of "training" or "personnel" in a way that allows the Court to reconcile its prior finding that the terms "training" and "personnel" are impermissably vague, with a finding that the term "expert advice or assistance" is not.

* * *
The "expert advice or assistance" Plaintiffs seek to offer includes advocacy and associational activities protected by the First Amendment, which Defendants concde are not prohibited under the USA PATRIOT Act. Despitethis, the USA PATRIOT Act places no limitation on the type of expert advice and assistance which is prohibited, and instead bans the provision of all expert advice and assistance regardless of its nature. Thus, like the terms "personnel" and "training," "expert advice or assistance" "could be construed to include unequivocally pure speech and advocacy protected by the First Amendment" or to "encompass First Amendment protected activities." Humanitarian Law Project v. Ashcroft, ___ F.3d ____ (9th Cir. 2003) (finding the words "training" and "personnel" in 18 U.S.C. 2339b to be unconstitutionally vague under the First Amendment).
Analysis: Interestingly, Judge Collins only enjoined the Justice Department from applying these two sections of federal law to the plaintiffs at bar -- not to the entire Justice Department and any such prosecutions it may engage in across the country. That's not surprising, and it's probably the right legal outcome. But it does limit the scope of this ruling.

Second, it's important to understand the context of the laws being overruled here. 18 U.S.C. 2339a and 2339b were originally passed as part of the AEDPA in 1996. (Here's a summary of what AEDPA does -- it's a huge piece of legislation which changed a lot of stuff in federal criminal law.) Since their passage, they have become an important tool in the DOJ's arsenal for fighting global terrorism, because of the way that global terror networks depend on help to move men, materiel and money around the world. Obviously, the term "material support" is vague on its face, which is why the statute includes a list of those things which can count as "material support" for purposes of criminal prosecution. Sec. 805 of the USA PATRIOT Act (Public Law 107-56) added one more category to further illuminate the definition of material support: "expert advice and assistance". That is the part of the USA PATRIOT Act being held unconstitutional here by Judge Collins -- one line in a piece of legislation that stretches for 132 pages (in the PDF version that I have). Without a doubt, most headlines will misstate this part, and many more politicians will obscure this part as well in the service of their political agendas. But the legal fact is that Judge Collins invalidated one small part of the Patriot Act, and a part that marginally modified another law which had in place since 1996.

Third, it's important to understand the nature of this decision from a Constitutional perspective. Laws may be stricken down under the First Amendment when they unconstitutionally infringe on free speech. One way that laws may do that is by being too vague. In such a case, the terms of the law in question are so vague that Americans can't figure out what the law is actually trying to criminalize. The result is that speech is chilled, because rational people will err on the side of caution by not doing something that may subject them to prosecution. The idea here, expressed in Judge Collins' order, is that 18 U.S.C. 2339a and 2339b are so vague that these laws actually include behavior that's expressly constitutional. Any law which is that vague on its face is subject to being stricken on Constitutional grounds, and that's precisely what Judge Collins did in this case.

What will happen next? The Justice Department will likely appeal this to the Ninth Circuit. But given that court's recent ruling in the same matter, it's unlikely that such an appeal will be successful. Some have suggested that the Justice Department might cure this matter through the exercise of prosecutorial discretion. But the Supreme Court has said that an agency cannot cure an unconstitutional law in this matter, because that's beyond the scope of an executive agency's power. (See Whitman v. American Trucking Association) Only an act of Congress to amend this Act with Constitutionally survivable language will work. The President has made his case for the Patriot Act to Congress, and Congress will likely take up this issue sometime in the next year. The most viable course of action for the Justice Department is to influence the next version of 18 U.S.C. 2339a and 2339b that comes out of Congress.

Update: Jess Bravin adds a good report on this decision in Tuesday's edition of the Wall Street Journal (subscription required). He points me to something which I should've noticed -- the existence of a circuit split between the 4th Circuit district court which upheld 18 U.S.C. 2339b in the Lindh case (before his plea bargain), and courts in the 2nd and 9th Circuit who have held this law to be unconstitutional. Such a split may increase the likelihood that the Supreme Court will take the case, and decide precisely what "material support" means under the Constitution.
Judge Collins's opinion follows several others striking down federal laws aimed at cutting off foreign terrorist groups from their backers in the U.S. In July, a federal judge in New York threw out some charges against attorney Lynne Stewart, who is accused of transmitting instructions from her imprisoned client, Sheikh Omar Abdel Rahman, to his followers on the outside. In that case, District Judge John Koeltl ruled that sections outlawing the provision of "personnel" to terrorist groups were unconstitutionally vague, but he let other charges stand.

In November, federal prosecutors filed a new indictment against Ms. Stewart. Her client, Sheikh Rahman, is serving a life sentence for conspiring to blow up New York City landmarks and is under strict regulations prohibiting his communication with the public.

The case before Judge Collins originated well before Sept. 11, 2001, and was brought by five organizations and two U.S. citizens who were challenging the 1996 antiterrorism law and seeking to maintain contacts with Kurdish and Tamil groups that the U.S. government had designated as terrorist organizations. They later added a challenge to the USA Patriot Act as well.

Judge Collins previously struck down a "personnel" provision under the 1996 law that is similar to the one she struck down Monday. Last month, a federal appeals panel in San Francisco affirmed her rulings doing so.

The government has appealed that ruling to the full Ninth U.S. Circuit Court of Appeals, noting that a federal judge in Alexandria, Va., adopted its view of the material-support statute in the case of John Walker Lindh. In 2002, District Judge T.S. Ellis III ruled that the ban on providing "personnel" could be applied to Mr. Lindh, an American who fought alongside the Taliban in Afghanistan.

No child left behind... except for those in DOD schools

Law From The Center, another weblog run by a UCLA law student and Army officer, has a troubling report today from the Magic City Morning Star (Maine) about a loophole in the No Child Left Behind Act which exempts schools run by the Department of Defense from its requirements. The loophole exempts these schools because they fall outside the purview of the Department of Education, and it affects thousands of students in DoD schools around the world.
Doug Kelsey, the deputy director of the DoD's school system, said that the schools are trying to live up to the spirit of the legislation despite the fact that the DoE has no jurisdiction over DoD schools. "We actively comply with the intent of the law," he said.

Kelsey said that DoD schools set high standards for its students and teachers, citing high performance on standardized tests and graduation rates higher than 95%.
. . . .
DoD 8th-graders ranked second compared to the 50 states on the 2002 National Assessment of Educational Progress reading tests. The military's 4th-graders ranked fourth among the states on the 2002 NAEP reading exam. African-American and Hispanic students perform better overall in the military's schools than anywhere else in the nation.
Maybe... but my friend Pete makes a good point that DOD students' scores on the all-important Scholastic Aptitude Test have been slipping. More than any NCLBA-mandated testing, the SAT has a real effect on the ability of these students to pursue post-secondary education and economic opportunity. But above and beyond any policy considerations, there is a normative reason why we should be concerned about this lack of accountability in DOD schools, which Pete sums up well:
Considering that DOD schools serve the children of those who are risking their lives to defend our country, and given that our leadership has determined the NCLBA as the best way to ensure our children and schools meet high standards of excellence, don't we owe it to our children to make the standards of the NCLBA mandatory on the DoD schools, instead of relying on their assurances that they will "comply with the intent of the law?"

Sunday, January 25, 2004

A legal clinic with a mission

Eugene Volokh passes on some good news from George Mason University, where Prof. Joseph Zengerle has set up a clinic to provide legal assistance to servicemembers on a variety of issues from family law to deployment matters. (Thanks to Stop the Bleating for the heads up) Prof. Zengerle, a West Point alumnus and Vietnam veteran, has this to say about the new clinic:
George Mason law school has an unusually large number of students who have served in the military or have a strong patriotic interest in supporting the armed forces, and who are eager for a clinical experience. The school, whose faculty share their interest, has preliminarily confirmed with defenseofficials the existence of unmet legal needs among active duty members of the services and their families (including those who have been mobilized from the reserve forces). Seeking to match those interests with the need, the Clinic for Legal Assistance to Servicemembers (CLAS) began formative activities in January, 2004. Initial law student participants, who include a retired Navy captain, a retired Army lieutenant colonel with enlisted experience, a woman who spent seven enlisted years in the Air Force including the first Gulf war, and a former Senate staffer who hails from a devoted Marine family, will work with the clinic's executive director, Professor Joseph Zengerle, a Vietnam veteran who instituted the seminar on Homeland Security and the War on Terror at the law school. The clinic is now conducting a needs assessment to determine the gaps students might help fill, which commenced with a meeting at Walter Reed Army Medical Center. Studying substantive laws like the Servicemembers Civil Relief Act, collaborating with bar and nonprofit service organizations, establishing compliance with applicable requirements under federal law and other authorities, and structuring the organizational and academic elements of a new clinic, are simultaneously ongoing. CLAS just received its initial donation, a private grant to match the first $25,000 in contributions.
Analysis: Suffice to say, I don't think we're going to see anything like this at UCLA in the near future, despite the existence of an active veterans association at the law school. Our veterans group does work with an organization called New Directions at the West L.A. VA hospital, but we don't have anything like this in the way of institutional support. Notwithstanding that fact, I think this is an outstanding idea, and I hope to support it any way that I can. According to a note on Eugene Volokh's page, Prof. Zengerle can be reached at: Joe Zengerle; George Mason University School of Law; 3301 North Fairfax Drive, #404; Arlington, VA 22201 -- or by email at jzengerl [at] This is a worthy cause -- if you can donate, please do.
Happy birthday to Jack Balkin's weblog
: "Balkinization", the weblog of Yale Law Professor Jack Balkin, celebrated its 1-year anniversary over the weekend. As you might expect from the Knight Professor of Constitutional Law and the First Amendment at Yale University, Prof. Balkin has a thoughtful essay about free speech, blogging and the essence of democracy that deserves a read. Here's a brief excerpt from his conclusion:
The second reason why the fears of the fracturing of the public sphere seem overstated is the nature of network topologies. The Internet, and in particular, the blogosphere, has a scale free topology. As the Internet expands, and more links are added, a larger proportion of links are made to a relatively small number of sites. The result is that, over time, a relatively small number of sites receive the lion's share of links. They are hubs in the network that forms the Internet's public sphere. Go to The Truth Laid Bear and look at the blogosphere ecosystem and traffic rankings and you will see what I mean. A handful of blogs have an enormous number of links to them and a considerable amount of traffic, and as you go down the list, the number of links and amount of traffic rapidly diminishes after the first dozen or so sites, until you get to a fairly flat curve.

As long as the Internet, and in particular, that portion of the Internet where people get their news, has a scale free topology, Sunstein's fear of an unacceptably fractured public sphere is overstated. Indeed, the problem may be precisely the opposite of the one he imagines: A relative handful of news sites, or a relative handful of bloggers may have a very large amount of power over public opinion because they are the key hubs or nodes in the network of Internet public opinion. That, in some ways, is similar to (although not identical with) the condition we had with the traditional mass media. While the dominance of the traditional mass media in the public sphere was created by government's control over the air waves (in the case of radio and television) and economies of scale and the effects of local advertising (in the case of newspapers), the dominance of a small number of hubs or nodes in the public sphere on the Internet is caused by power laws that apply to certain types of communications networks, of which the Internet is a particularly salient example. To be sure, the concentration of influence over public opinion on the Internet is much less than we had in the traditional mass media. But is not at all clear to me that this is necessarily a bad thing.
Analysis: I agree with much of what Prof. Balkin says. The free speech metaphor of a "marketplace of ideas", which traces back to Justice Holmes' stirring dissent in Abrams v. United States, applies to weblogs as well as any other phenomenon on the Internet. Just as in the real marketplace, bad products sometimes get their day in the sun. (Snake oil or spray-on hair anyone?) But over time, the good ideas and good bloggers have tended to rise to the top, just as they would if they were goods or services in a real marketplace. If there is a downside to the weblog world, it is that there is no mechanism for the cleaning of bad ideas, as there is in the real marketplace where bad ideas result in bankruptcy and business failure. In the blogosphere, bad ideas tend to have more staying power and resilience, especially because it costs nothing to run a weblog. But that only raises the stakes for those of us who are trying to put "good speech" out there. As Justice Holmes wrote nearly 90 years ago:
"... when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the 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. That at any rate is the theory of our Constitution."
And this is true of the Internet as well. We ought not be afraid of bad ideas, whether they come from the right or left. But we ought not be afraid speaking out against bad ideas either.
The difference between AWOL and Desertion
: Centrist, fellow UCLA law student and Army officer, has a good analysis of the precise legal difference between AWOL and desertion. This distinction has become relevant since filmmaker Michael Moore called President Bush a "deserter", and retired-Gen. Wesley Clark quasi-endorsed that label by reference.

Also see Donald Sensing's discussion of the same subject at One Hand Clapping, complete with some interesting anecdotal evidence on the matter from then-CPT Sensing's time as company commander. (Don's post got 43 comments, so apparently he must've said something right.)

Full disclosure: I made a small contribution to the Clark campaign a couple of weeks ago, so I will stay out of this one. But I can't find a flaw in either analysis linked above, and a general officer ought to know better than to use imprecision when it comes to sections of the Uniform Code of Military Justice.

Saturday, January 24, 2004

A steak and lobster military on a McDonalds budget, part II

New Pentagon budget is bigger than ever (in constant dollars)

It may have been the case after the Cold War that we underfunded parts of our military -- to have a "steak and lobster military on a McDonald's budget", in the words of one Army colonel (and U.Texas alumnus) that I worked for on active duty. But that's clearly not the case today -- we're now paying for our military with a corporate charge card more worth of Spago or Patina. The Pentagon is requesting an FY2005 budget of $401.7 billion to cover everything from current operations to new equipment to futuristic research by DARPA -- a 7% increase from FY2004. (Also see this report by Esther Schrader in Saturday's LA Times, and this article in the Washington Post on the same subject.)
In order to meet U.S. national security priorities, the fiscal 2005 budget request reflects the president's continued commitment to prosecute the War on Terror and balances support for long-term transformation of technology and defense capabilities with resources for current global operations and requirements.

Secretary of Defense Donald Rumsfeld said the budget highlights the president's priority to provide the pay, benefits and other quality-of-life measures needed to recruit and retain the highest quality volunteers for service in the active and reserve forces.

"The president three years ago directed that we consider how best to transform this department to ensure our nation has the capabilities and people needed for the national security circumstances of the 21st century. We have made significant progress," Rumsfeld said. "This budget builds upon past work to provide for a ready force made up of the talents and skills needed in our new national security environment. The men and women in uniform are demonstrating the joint and combined warfighting capabilities our nation will need to prevail in the Global War on Terror."

The fiscal 2005 defense budget provides for investment in improved and better-integrated intelligence capabilities and emphasizes readiness and training. This budget also supports continued transformation of the joint force and provides for homeland defense needs. The budget reflects the tools previously provided by Congress for better managing the force, including the first steps toward implementation of the National Security Personnel System reforms signed into law by the president in 2003.
More to follow...

Friday, January 23, 2004

Trouble with America's military reserves

A pair of articles today lets us in on the problems surfacing in America's reserves. The first is a report from Joe Galloway, the same reporter who accompanied Hal Moore's 1-7 Cav into the hellhole of the Ia Drang Valley during the Vietnam War. Moore and Galloway later co-wrote the book "We Were Soldiers Once... and Young." Galloway is now one of the elder statesmen in the military press corps, and he writes this week about a new report by Prof. Charlie Moskos, the preeminent military sociologist in America.
[Moskos] found morale was good among regular soldiers and was markedly lower among reserve component soldiers.

In a preliminary report written for the acting secretary of the Army, Les Brownlee, Moskos, a respected author and professor emeritus at Northwestern University, says he found a "higher level of morale than was anticipated" among regular Army soldiers.

Moskos noted "exceptional levels of performance under very demanding conditions" and said he had no recommendation for major changes in command policies affecting the troops. He did have suggested changes in personnel policies.

In contrast to the high morale of regular soldiers, Moskos says, he found lower morale among reserve components - Army Reserves and Army National Guard. The sociologist said that "the complaint that reservists were second-class citizens in Operation Iraqi Freedom was frequently heard."

* * *

Moskos wrote that the lower morale among reserves was specific to Iraq, and that he had found morale among reservists doing peacekeeping duty in Bosnia and Kosovo generally higher and on a par with regular soldiers.

Clearly, with the Army relying so heavily on Reserve and National Guard soldiers to do its job, someone at the top needs to be listening to Charlie Moskos and taking corrective action. This is not the time to let reserve component morale sink when the percentage of reservists in the force occupying Iraq are rising to new highs - and when many will have the opportunity to vote with their feet and abandon the Reserves and Guard at re-enlistment time if they continue to feel badly used and poorly treated.
According to this report in USA Today, reservists have already started to vote with their feet. A story earlier this week reported that the Army Reserve has having serious trouble with managing its personnel in the wake of numerous post-9/11 mobilizations. It has been widely thought that the problem affected the National Guard as well, though National Guard Bureau officials have generally denied such claims in the absence of data. Here's what Dave Moniz had to say in today's USA Today:
A recent survey of 5,000 soldiers from 15 states showed that the rate at which Army Guard members choose to leave the military could jump — to 20-22% a year among those who have served long overseas tours, typically 12 months.

Last year, about 16% of all Army Guard troops left the military as a result of retirement, injuries or a decision not to re-enlist, a figure slightly below the annual historical average of 18%. Among Guard soldiers returning from deployments in the USA and overseas from 2001 to 2003, only 12.5% left, statistics show.

The survey results are raising concerns, given the strains on Guard and Reserve troops and widespread worries that part-time soldiers are being relied on too much in the war on terrorism. Some 97,000 soldiers — about 28% of the 350,000-member Army Guard — are now on active duty in the USA or overseas.

The Pentagon will continue to rely heavily on the Army Guard and Army Reserve in Iraq, where by May, nearly 40% of the more than 100,000 U.S. troops will be Guard or Reserve.

Some military personnel analysts believe the survey hints at the leading edge of an exodus because part-timers are losing patience and don't want to be treated like full-time troops.
Analysis: Yeah, I agree with that. Much of this problem traces to the overreliance of America's military on the reserve components. A generation ago, Gen. Creighton Abrams removed a great deal of support capability from the active force and put it into the reserves, as a mechanism to prevent any future wars like Vietnam where the President chose to fought without the mobilization of the reserves -- and without popular support. As I wrote in an op-ed last year, this concept has run into serious problems since Sept. 11, with so many reserve units being called up for long-term deployments.
Army Gen. Creighton W. Abrams played a key role in crafting this "total force" concept, wherein key support units were placed in the reserves that active-duty combat units would need for any major war. The idea was that no president could again wage an unpopular war, because a future war would require reserve mobilization, and that would require popular support.

The system worked fairly well during the Cold War, when everyone in the active and reserve force trained for the big war with the Soviet Union. After the Berlin Wall fell and the first Gulf War ended, things changed. America's military transitioned from a "forward-deployed" force focused on the Soviet Union to an expeditionary force that deployed to small trouble spots around the world.

The role of the reserves changed as well. Support units such as military police, civil affairs and logistics now mattered more for missions like Somalia and Haiti than the combat units in the active force. The operational tempo for reservists increased steadily during the 1990s.

After the Sept. 11 attacks, America mobilized its reserves in a way that hadn't been seen since Korea. At home and abroad, reservists performed missions that active soldiers couldn't (such as guarding airports) and supported the active force in Afghanistan and elsewhere. Since Sept. 11, no fewer than 40,000 reservists have been on active duty at any given time, both for homeland security missions and combat operations overseas. Today, the Defense Department has 168,915 reservists on active duty in support of the war on terrorism. [The number today is nearly 40,000 higher than this, according to the Pentagon.] Senior officials have made it clear that the military could not function without the support of the reserves.

Yet, America's reserves have never achieved full equality with their active-duty counterparts. The reservists marooned at Fort Stewart -- as well as their reserve brethren around the world -- have long suffered from a lack of resources. America gives less to its reserve forces at every step -- recruiting, training, deployment, equipment, manning, medical care, even veterans' benefits. In the Army Reserve and National Guard, the nation gets a bargain -- trained soldiers with civilian experience who can be called at a moment's notice, but paid for only one weekend a month and two weeks in the summer.

Even in Iraq, reservists had to make do with less than their active-duty counterparts. Reserve units typically stand last in line for new equipment, behind active-duty Army units and the Marines. National Guard and Army Reserve units deployed to Iraq with radios older than many of their soldiers -- radios that could not talk securely with the active-duty units they worked with.

Many reserve units drove into Iraq with cargo trucks that were more than 30 years old. Reservists were also last in line to receive the military's new "Interceptor" body armor, specially designed to stop bullets from an AK-47.
You can't have a steak & lobster military on a McDonald's budget. Over the last few decades, we have purchased readiness in the reserves at a very low cost. We have essentially maintained skeleton units in the reserves on the assumption that we could train these men and women for war when the time came, and that we could infuse resources/equipment/personnel into these units when the need came. Well, the need is here, and there's no time to do just that before we send these units into combat. The result is that reservists have gone to combat without the resources, training, personnel, leadership, and equipment necessary to get the job done. Body armor is just one example. If you look at the MTOE (Modified Table of Organization and Equipment) of any reserve unit, it's a full generation behind its active-duty counterpart.

Reservists are getting out in droves because they're tired of being abused this way; because they're tired of being used by the Pentagon as an end-run around end-strength limits; and because they signed up to fight "the big one" -- not be mobilized multiple times within a short period. At the end of the day, I have limits to my sympathy for reservists because they did all volunteer and raise their right hand to swear an oath as soldiers. But the nation has got to realize that these reservists are not an infinitely renewable resource. If the Army treats them badly, they will vote with their feet. And our military readiness will suffer when they do.

Mark R. Lewis, who until today wrote the weblog "Acquire, Identify, Engage", has decided to hang up his keyboard in order to pursue a new position with the House Armed Services Committee. Mark is one of the most brilliant guys I know; in addition to his smarts, he has more than 11 years of experience as an Army infantryman to back up his brain. He is precisely the guy I want in the offices of HASC, adding his informed voice to the fray over defense budgets, force structure, military strategy, and other national security matters. Like me, Mark made a promise to the soldiers he left behind in the Army that he would use his graduate degree and civilian position to continue the fight at a higher level. Congratulations on getting into a position where you can do just that.

Thursday, January 22, 2004

Waiting out the Patriot Act

In his State of the Union Address on Tuesday night, President Bush asked Congress to renew the USA PATRIOT Act, saying that some of its key provisions will expire this year. If those provisions expire, the President continued, American law enforcement agencies won't have the tools they need to prevent terrorism. Here's what the President said:
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.


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.

It appears that Congress is less than willing to ask "how high?" when the President says "jump". Eric Lichtblau reports in the New York Times that Congressional leaders on both sides of the aisle are hesitant to act on this legislation at this moment, before the 2004 election, and unclear as to why the President has made the USA PATRIOT Act an issue before the election.
Crucial provisions of the law do not expire until the end of 2005, and Mr. Bush's push for their renewal in his State of the Union speech, which he repeated on Wednesday, caught many lawmakers off guard.

"I'd say he's about a year early," said Senator Charles E. Grassley, Republican of Iowa and a leading member of the judiciary committee. "If I were running for president, I wouldn't have brought it up now."

Mr. Grassley, like other members of Congress interviewed on Wednesday, said that while the antiterrorism act included some important law enforcement tools worth keeping, it was so far-reaching that its continuation needed careful scrutiny.

"I would not take a position of outright renewal at this point," he said.
Analysis: The White House said that the President was putting down a "marker" as to what his position was on the bill. But I think in reality, he's inviting a fight over civil rights and civil liberties -- a fight which can only help the Democrats once they choose a candidate and coalesce on the issues they're going to campaign on in 2004. This will likely be one of their issues, and the President has served it up on a platter. The Democrats will likely argue, as Fred Kaplan notes in this Slate article, that real spending on homeland security has actually dropped since 9/11 during this presidency.
"We must continue to give our homeland security and law enforcement personnel every tool they need to defend us."

Yet this is precisely what President Bush has failed to do. His homeland security budget for fiscal year 2004 was smaller than the budget for FY 2003. He has yet to order a serious effort to develop or procure WMD-detecting sensors. Security of cargo on ships and commercial airliners is riddled with holes. The borders are sieves. Most local police and fire departments lack the money, gear, and training to prevent, or to deal with the aftermath of, terrorist attacks.
And the Democrats will connect the dots to the Patriot Act too, saying that this Act diminishes "[t]he right of the people to be secure in their persons, houses, papers, and effects" (to quote the 4th Amendment), and that the Bush Administration actually threatens the personal security of Americans through its aggressive style of law enforcement. I don't necessarily agree with this entire argument, but I think it's a plausible interpretation of the facts and one that can be used to great political effect.

Update: In direct response to Fred Kaplan's criticism above, President Bush said today that he would increase teh amount of federal money being spent on homeland security efforts. More to follow...
Memo: get J-Lo a GoCo lawyer

"GoCo" stands for "government contracts", and it looks like she and a few of her Hollywood colleagues could use a good one in the wake of this report by Esther Schrader in the Los Angeles Times. Apparently, these stars ran up quite a bill on the USO's tab while entertaining U.S. military personnel abroad -- without any consideration for the way federal law requires them to handle their accounting.
The Lopez show was among several cited in a General Accounting Office report released this month that found more than $430,000 in improper, questionable or unsupported USO tour expenses charged to the Pentagon over a two-year period.

The GAO study, which looked at 10 randomly selected tours during 2000 and 2001, found no evidence of malfeasance in the nonprofit organization's use of government money. Nor was there any finding that the entertainers did anything wrong.

But the investigation, requested by Rep. C.W. "Bill" Young (R-Fla.), found that taxpayers repeatedly paid for first-class plane tickets, liquor and limousine services for celebrities, in violation of Pentagon and federal regulations.

Any such luxury expenses are supposed to be paid out of the USO's private donations, not the money it gets from Congress. The GAO report blamed sloppy bookkeeping by ill-trained employees.

The investigation, however, prompted the Pentagon's Armed Forces Entertainment division, which disburses federal funds to the USO, to review all tours since 1998; so far, it has uncovered an additional $73,000 in improper payments and recovered more than $140,000 from the USO.
Analysis: C'mon guys, let's get this admin stuff right. These tours do a lot of good for our soldiers overseas, and I'm not all that upset at paying for a first-class ticket or some liquor if that's what it takes to put J-Lo in front of the 4th Infantry Division. (Especially if we're willing to use private military jets to shuttle around senior generals and defense officials.) But we need to tighten our shot group here and do it right. That means reading the FAR and the DFAR and figuring out exactly what can be done with government money, and asking private sources to pay for the rest.

Wednesday, January 21, 2004

New legal blogs of note

Legal Fiction: a weblog written by an anonymous law clerk to a federal judge somewhere in the South who claims he's not part of the Federalist Society, and whose links look center-left to me. It's always interesting to hear from someone who's working inside of a federal judge's chambers.

Law From The Center: a weblog written by a UCLA law student who's also a captain in the United States Army -- but who's quite a bit smarter than me. (He made law review; I didn't) He's got a post up now on the brief filed by the JAG lawyers assigned to the Gitmo detainees, among others, that deserves a read.
Army Reserve chief says change must be made to reserves -- and now

In the kind of blunt language that shows years of frustration from dealing with bureaucrats and regulations, Army LTG James Helmly said he's working on a way to overhaul the way the Army Reserve does business in the midst of the Global War on Terrorism which has stretched the reserves to "near the breaking point", to quote a recent Army War College study. Vernon Loeb reports in the Washington Post that these changes will include everything from simple fixes -- like fielding equipment to those who need it -- to wholescale restructuring and unit deactivations. (Eric Schmitt reports in the New York Times on the same luncheon briefing.)
Lt. Gen. James R. Helmly said his staff is working on an overhaul of the reserve aimed in part at treating soldiers better and being more honest with them about how long they're likely to be deployed. Helmly said the reserve force bureaucracy bungled the mobilization of soldiers for the war in Iraq, and gave them a "pipe dream" instead of honest information about how long they might have to remain there.

"This is the first extended-duration war our nation has fought with an all-volunteer force," said Helmly. "We must be sensitive to that. And we must apply proactive, preventive measures to prevent a recruiting-retention crisis."

Helmly said his staff is engaged in an overhaul of the reserve aimed at turning the Army's part-time soldiers into a top-flight fighting force that can handle the strains of the global war on terrorism. In a Pentagon briefing for defense reporters, Helmly outlined an array of planned changes and bluntly described the force he took over in May 2002 as being dominated by bureaucrats who often ignored soldiers' needs.

In a recent memo, Helmly said, he told his subordinates that he was "really tired of going to see our reserve soldiers [and finding] they're short such simple things as goggles. It's about damn time you listen to your lawyers less and your conscience more. That will probably get me in trouble. But I told them, I want this stuff fixed."
Analysis: There are a few important things to pull out of this story. The first is that the Army Reserve is having a retention crisis, and that this crisis is being masked by the current implementation of "stop loss" and "stop move" policies. The Pentagon and Army leadership has denied this fact, saying that the Army Reserve is not in fact having such a crisis, and that it has met its recruiting and retention targets for the most part since 9/11/01. I'm a bit closer to where the rubber meets the road in the reserves, and my gut told me that was wrong. Now, the Chief of the Army Reserve is saying he agrees with me -- and that such a crisis likely looms for every unit that redeploys from Iraq and comes out of the "stop loss" policy's scope.

The next big thing I see here is a realization in the reserves that a) the Iraq mission will go on for a long time, and that b) the reserves must fundamentally change their structure in order to be ready for it. America's all-volunteer reservists typically don't join to do back-to-back rotations in airports and Iraq, nor do they sign up to be "fillers" for the active-duty force. They sign up to fight the big one; a mass mobilization war where the nation gets behind them and they can justify being called away from their lives and jobs. It's very hard on the reserves to call up more than once in a short period, and it generally breaks the back of units to do it. LTG Helmly wants to restructure the reserves so that they're capable of managing their mission load without breaking their soldiers or their units. That's a good thing.

Third, there's a message about the end strength of the Army in this story too. The Army's end strength is capped as a matter of federal law, at somewhere below 500,000. However, Army leaders have said they have busted this number by as much as 20,000 in recent months due to "stop loss" and other policies in place. But that doesn't even scratch the surface of the problem. When you factor in reservists, the Army busts its end strength by 150,000. Since 9/11/01, the Army and other services have maintained at least 40,000 reservists on active duty at any given time, with peaks just after the 9/11 attacks for homeland security and in mid-2003 for Iraq. Right now, the reserves have mustered roughly 200,000 servicepersons for duty -- including about 160,000 Army reservists and National Guardsmen. In legal terms, these numbers don't count against the Army's end strength. But in policy and practical terms, it's clear that the Army doesn't have the "boot strength" it needs to do its job. (Also see this article by Tom Bowman in the Baltimore Sun, where another 3-star Army generals says he thinks the Army is too small.) More specifically, the Army doesn't have the strength in specific areas like Civil Affairs, Military Police, Transportation, and others because those have been concentrated in the reserves. LTG Helmly's ideas may fix that, but it'll take a while.

Update I: On a related subject, see MAJ Don Vandergriff's briefing on lessons learned from Operation Iraqi Freedom, available from the Defense and the National Interest website.

Update II: A reader writes in with a very good question. We hear a lot about how the Army Reserve and National Guard is broken. But what about the other services' reserves, especially the Air Force Reserse and Air National Guard? They've gotten a lot of use since 9/11, haven't they? And what about the Navy and Marine Corps Reserves? The answer is, I think, that the media and the public have focused on the Army's reserve components because they're the largest and they've taken the brunt of the mobilizations. But it's an interesting question, and one that I don't have the answers to because I'm not as familiar with these other organizations and their current status.

Update III: In characteristic style, Secretary of Defense Donald Rumsfeld "brushed aside" the statements made on Monday by another 3-star Army general that said the Army needed to increase its end strength. The issue is very much tied to this one, because the Army has patched its end strength shortfall by calling up reservists.
"We've increased end strength substantially," said Rumsfeld, using the service term for the total number of soldiers.

The overall increase is about 36,000 troops, accomplished through the Pentagon's emergency order that temporarily bars service members from completing their enlistments or retiring until they finish their duty in Iraq or Afghanistan.
Analysis: Now that's a bit disingenuous. The Pentagon has not permanently increased its end strength because that's outside its power, and it has not requested such an increase in its FY04 budget act. Such an increase may be part of the FY05 National Defense Authorization Act, but I don't think that's gone over to the Hill yet. The Pentagon has "increased end strength substantially" in two major ways: 1) by involutarily extending soldiers on active duty through emergency "stop loss" policies, and 2) mobilizing hundreds of thousands of reservists. It's like saying you're fiscally fit when you're borrowing money up to your eyeballs... eventually, that borrowing's going to catch up to you.
TSA does the right thing

Issues new policy to help military families say goodbye

This from the Philadelphia Inquirer:
The government said it would allow the families and friends of troops flying to and from Iraq to escort them all the way to the airport gates, rather than getting stopped at security checkpoints. The Transportation Security Administration sent a memo last week to airport security directors asking them to develop procedures so members of the U.S. armed forces could be accompanied to and from their boarding gates, agency spokeswoman Amy von Walter said yesterday.