Friday, February 6, 2004

The final word on President Bush and the Guard

My note on the ways to document the President's military service has earned me some attention, both in the blogosphere and the mainstream media. For those links, I'm grateful. But I'm also a little bit disturbed by the traction this story has gotten, and I'm not looking forward to the kind of election where this stuff takes precedence over the stuff I really care about: national security, ballooning deficits, a stagnant economy, etc.

This morning, I read an op-ed by retired-Sen. Bob Dole in the Wall Street Journal that summed up my feelings pretty well. I disagree with Sen. Dole that an honorable discharge is itself dispositive of any questions about military service, since I think such a discharge is the lowest common denominator of characterizations for military performance. However, I agree with Sen. Dole that war records the only thing that matters in this election, and that there are much more important things to talk about between now and November.
These attacks are offensive. Service in the National Guard is one of the finest things any citizen can do, and there are tens of thousands of guardsmen and women serving our country today all over the world. Thousands are serving in Iraq, and some of those have made the supreme sacrifice in the service of their country.

It should be incumbent upon presidential candidates to disavow accusations that have no proof or substance behind them. Gen. Wesley Clark learned the price of irresponsibility the hard way as thousands of voters deserted him in the weeks since he intimated President Bush might have been a deserter. Enough.

Sen. Kerry is a war hero, but if campaigns were about war records, I would have won easily in 1996. Campaigns are about issues, and the candidates of both parties owe the American people a compelling vision for the future of America.
Analysis: I like Sen. Dole's self-deprecating sense of humor. He's right -- if war records counted, we'd have seen Sen. John McCain run against Al Gore in 2000, and Sen. Dole would have beat President Clinton hands-down in 1996. But there's more to a candidate than what he did in his twenties, and though such service can reveal a lot about a person's character, it can also obscure the issues that count.

Also, Sen. Dole makes an important point: today's National Guard is not your father's National Guard. It's not a place where rich (or lucky) kids can go to avoid the draft. In today's National Guard, the question is not if you will deploy overseas, it's when. Today's citizen soldiers join up in the absence of conscription because they want to -- whether it's for college money, adventure, the chance to do something big, or any number of reasons. Anyone who attacks the reserves and National Guard today is a fool, given the sacrifices of American reservists since Sept. 11. If partisans on the left want to attack the President's military service record, that's one thing. But they should be very careful to avoid attacking the National Guard and the reserves in the process.

Update: I think Tim Russert reads Intel Dump (see this note), based on the following question & answer exchange with the President broadcast this morning on Meet the Press. Here's the transcript from the interview:
Russert: And we are back in the Oval Office talking to the President of the United States.

Mr. President, this campaign is fully engaged. The chairman of the Democratic National Committee, Terence McAuliffe, said this last week: "I look forward to that debate when John Kerry, a war hero with a chest full of medals, is standing next to George Bush, a man who was AWOL in the Alabama National Guard. He didn't show up when he should have showed up."

President Bush: Yeah.

Russert: How do you respond?

President Bush: Political season is here. I was I served in the National Guard. I flew F 102 aircraft. I got an honorable discharge. I've heard this I've heard this ever since I started running for office. I I put in my time, proudly so.

I would be careful to not denigrate the Guard. It's fine to go after me, which I expect the other side will do. I wouldn't denigrate service to the Guard, though, and the reason I wouldn't, is because there are a lot of really fine people who served in the National Guard and who are serving in the National Guard today in Iraq. [This is virtually a paraphrase of what Sen. Dole says in the Wall Street Journal, as well as my thoughts above.]

Russert: The Boston Globe and the Associated Press have gone through some of their records and said there's no evidence that you reported to duty in Alabama during the summer and fall of 1972.

President Bush: Yeah, they're they're just wrong. There may be no evidence, but I did report; otherwise, I wouldn't have been honorably discharged. In other words, you don't just say "I did something" without there being verification. Military doesn't work that way. I got an honorable discharge, and I did show up in Alabama.

Russert: You did were allowed to leave eight months before your term expired. Was there a reason?

President Bush: Right. Well, I was going to Harvard Business School and worked it out with the military.

Russert: When allegations were made about John McCain or Wesley Clark on their military records, they opened up their entire files. Would you agree to do that?

President Bush: Yeah. Listen, these files I mean, people have been looking for these files for a long period of time, trust me, and starting in the 1994 campaign for governor. And I can assure you in the year 2000 people were looking for those files as well. Probably you were. And absolutely. I mean, I

Russert: But would you allow pay stubs, tax records, anything to show that you were serving during that period? [Hmmm... where did he get this idea?]

President Bush: Yeah. If we still have them, but I you know, the records are kept in Colorado, as I understand, and they scoured the records. [Note: the IRS apparently destroys all paper records after 10 years, and it's doubtful that the military records have more information than what's been released so far. So... I think this "if we still have them" caveat is probably being said with some level of scienter.]

And I'm just telling you, I did my duty, and it's politics, you know, to kind of ascribe all kinds of motives to me. But I have been through it before. I'm used to it. What I don't like is when people say serving in the Guard is is may not be a true service.

Russert: Would you authorize the release of everything to settle this?

President Bush: Yes, absolutely. We did so in 2000, by the way.
So, the President is willing to release all of his documents in order to settle this matter. Any bets on how/when that will happen?

Thursday, February 5, 2004

Pentagon to announce changes to rules for military tribunals

The AP reports that the Pentagon plans a rule change for its planned military tribunals which would make it harder to monitor conversations between defense attorneys and detainees.
Under revised rules not yet released by the Pentagon, defense lawyers would have much more information about whether and how the government might eavesdrop on their conversations with suspects, people familiar with the changes told the AP.

Neal Sonnett, a Miami defense lawyer and head of an American Bar Association committee studying tribunals, said defense lawyers no longer would have to sign an affidavit that makes it appear the lawyer endorsed the eavesdropping.

"That is a major change that is going to make it a lot easier for civilian lawyers to participate," said Sonnett, who worked with Pentagon lawyers to suggest changes.

A Pentagon spokesman confirmed that rules changes will be announced soon. He declined to provide details.

"We're doing some tweaks and adjustments and clarifications on the rules that I think will be very well received and that address issues raised by our allies and also by other legal professionals and other organizations," Maj. John Smith said.
Analysis: Minor rule tweaks like this are probably a sign that these tribunals are around the corner. I'm not sure what the ramifications of these trials will be for the 2004 election. Presumably, the mere presence of these tribunals will help the ACLU and the left raise money. On the other hand, military tribunals could be a public relations coup for the Pentagon if they're conducted fairly and presented that way to the public, because they will look like a victory against terrorism and a victory for the rule of law. More to follow...

Update: The Pentagon spells out exactly what these changes will look like in a press release issued on Friday. Among the changes:
The Department of Defense issued Military Commission Order No. 3, "Special Administrative Measures for Certain Communications Subject to Monitoring," and an amended Annex B to Military Commission Instruction No. 5, "Qualification of Civilian Defense Counsel." Additionally, DoD announced that it would waive administrative costs for processing top secret security clearances for civilian defense counsel who have been retained by an accused and whose representation in the case would require access to top secret material.

Inside the Gitmo defense team

Jeffrey Toobin has a great piece in the new issue of The New Yorker on the military defense lawyers appointed by Defense Secretary Donald Rumsfeld to defend the prisoners at Guantanamo Bay. Unfortunately, the magazine hasn't put this article on its website, so you'll have to buy a copy in person. But here's a short excerpt from the story, which details the legal fight these detainees (and their lawyers) are facing.
Will Gunn was on a training mission to Buenos Aires when he learned that he might be chosen as the lead defense counsel in the trials by military tribunal of the detainees at Guantánamo Bay. The military has placed approximately six hundred and fifty suspected war criminals, captured in connection with the war in Afghanistan, in custody at the American naval base in Cuba—the interrogation and detention center now officially known as Joint Task Force Guantánamo. Their ranks, and thus Gunn's potential clients, could include Osama bin Laden, if he is ever captured. "My first reaction was, Is somebody trying to torpedo my career?" Gunn, a colonel in the Air Force, recalled recently. "It occurred to me that there would be people who would not be able to understand how I could represent individuals who are characterized as enemies of the United States."

Gunn, a career military lawyer, is forty-five years old and African-American. At six feet seven, he is used to viewing things from a distance, and he made a thorough evaluation of the opportunity that had been presented to him. "For me, a critical component of how I make decisions is I try to weigh the costs from a rational and intellectual standpoint, and I also pray about it," he said. Many friends advised him against taking the job, and his pastor was noncommittal. "We really don't know what God is trying to do," the pastor told Gunn.

The son of a high-school teacher and a social worker from Fort Lauderdale—and a graduate of the Air Force Academy and of Harvard Law School—Gunn has made steady progress through the military hierarchy; many of his colleagues thought the tribunal job would not help if he wanted to be promoted to general. Still, Gunn said, "I felt I could do the job well. I believe that the greatest risk to the country is that these trials could be conducted in such a way where the world's perception is that they are illegitimate proceedings. What I would bring to the table, I believe, is that I could divorce myself from concern about career advancement, and I could focus on doing my utmost to see that the process was in fact legitimate by pursuing a zealous defense." So when the general counsel to the Department of Defense offered Gunn the job, in January of 2003, he accepted. He now supervises a staff of six lawyers, from behind a set of unmarked doors in an anonymous office building close to the Pentagon.

More than two years after the September 11th attacks, the Bush Administration's approach to the legal aspects of its war on terrorism resembles its diplomatic and military strategy: aggressive, unilateral, and unapologetic. Gunn and his staff therefore find themselves in an awkward position, risking criticism for assisting some of the least popular clients in the West and for participating in a game rigged against those clients. Because the tribunals are likely to begin soon, Gunn's role has taken on new urgency. The Department of Defense has almost finished establishing the procedures for the tribunals, and the Bush Administration has designated six of the Guantánamo detainees as the probable first defendants. In the spring, the United States Supreme Court will hear arguments on a separate request by several prisoners, represented by the Center for Constitutional Rights and a private law firm, that they be allowed to challenge, in the American courts, their continued incarceration. But the absence of legal proceedings, as much as the cases themselves, may illustrate more about the Administration's war on terror—and about the place of the rule of law in this new kind of war.
Analysis: The rest of the article is really good, so I recommend buying a copy if you can. The Al-Odah case before the Supreme Court, which involves the challenges of detainees now at Gitmo, has the potential to revolutionize American constitutional law. Theoretically, the justices could use this case (as well as Hamdi and Padilla, if they take the latter case) to repudiate Korematsu and other WWII-era internment cases. The high court could also set forth a new paradigm for the construction of law in the national security context -- whereby the President's actions in this arena are subject to some form of judicial review. Or, the Court might decide the case purely by stare decisis -- upholding the precedent of Johnson v. Eisentrager, and deciding that these detainees deserve no right of access to federal court. I teach on this subject, but I'm not smart enough on the Supreme Court to offer a good prediction here. But, Mr. Toobin's article has some ideas on where the Court might go, so the article's worth a read.
Hunting the low-tech insurgents in Iraq

A classic story of asymmetric warfare: IEDs vs. the US military

The Washington Post has a great report today by Daniel Williams in Fallujah on the efforts underway in Iraq to deal with the Improvised Explosive Device ("IED") problem. IEDs have taken a major toll on U.S. troops in Iraq; they are responsible for a sizable chunk of all casualties in the post-war phase of Operation Iraqi Freedom. By and large, these IEDs have hit "soft" units like logistics convoys and command vehicles -- they have not been targeted at well-protected armor or mechanized infantry units. In recent months, the Army has developed passive and active means for defeating these devices, including the use of combat engineers and EOD units to deal with them. The article focuses on those TTPs:
Along with car bombs, the signature weapon of the Iraqi insurgency has been what the military calls an improvised explosive device, or IED. Car bombs have largely taken the lives of Iraqi civilians. IEDs have killed and wounded large numbers of U.S. troops. Hardly a day goes by in Iraq when a roadside bomb isn't discovered. Few days pass without one exploding, damaging convoys that are the Army's lifeblood. During the last week of January, eight American soldiers were killed in four bombings in the Sunni Triangle area west of Baghdad.

"IEDs are hard on morale," said Capt. Miguel Torres, commander of the 760th Ordnance Company's explosive ordnance disposal unit, the outfit that's called in once squads such as Anderson's have spotted a bomb.

"No one can think that just because they are mostly sitting at a desk looking into a computer that they can't get hit," Torres said. "Even a clerk who has to go out somewhere to get some paper is vulnerable. No one can say, 'Hey, I'm okay, it's the infantry that has to worry.' IEDs strike fear in everyone."

Torres' unit gets rid of bombs, usually by blowing them up. "That thing of cutting the blue wire then cutting the red wire, that's out of the movies," Torres said.

At least 382 IEDs have detonated at or near convoys in Iraq, Torres said. The count is undoubtedly low because it only includes cases in which disposal units were called in, Torres said. Sometimes, a military convoy that spots a bomb will just move on because soldiers fear an ambush or are in a hurry and don't bother to call in the disposal unit. More than 2,500 roadside bombs have been discovered, according to the military.

American forces did not foresee extensive use of roadside bombs when they invaded Iraq, soldiers and officers say. In Afghanistan, Bosnia and Kosovo, U.S. troops rarely encountered them. "We were briefed on booby traps, like it was Vietnam. IEDs were hardly mentioned," Torres said.

Units like Anderson's run interference for troops on roads around Fallujah, arguably the roadside-bomb capital of the country. Yet his unit received no special training to identify and clear IEDs before coming to Iraq. "We were never trained for this. We clear mines and booby traps," Anderson said. "There's no manual for IEDs.

Finding the lethal devices can be hit or miss. On a recent Saturday, members of the 2nd Squad accompanied a unit sent to blow up a building from which snipers had fired on troops. Spec. David Lane, from Dexter, N.Y., was probing a roadside when the group came under fire. An infantryman to Lane's left crouched to return fire. Lane noticed something yellow nearby. Then he saw an antenna coming out of a cement block.

"Buddy," he said, "you might want to clear out of here. We've got a live one here."

Both moved away. At 10 yards, "where I knew it wouldn't kill me," Lane radioed to a commander, who called in a disposal team to blow up the bomb.
Analysis: This is a classic story of asymmetric warfare. The U.S. Army (and Marine Corps) has rolled in with the most impressive military juggernaut in human history -- a force with unparalled capability and destructive power. The Iraqi insurgency can't hope to fight this force on the open fields of battle and win. Nor can they hope to oppose them in Iraqi cities with anything resembling conventional tactics -- they'll be annihilated by U.S. ground forces reinforced by U.S. airpower and artillery. So, the Iraqi forces have decided to seak out America's relative areas of weakness: its lines of supply/communications, its logistics units, its command units -- the soft underbelly of America's military. Against these targets, the enemy has decided to employ tactics which aim to inflict casualties, because of the effect of casualties on America's will to fight, as well as tactics that minimize Iraqi exposure to U.S. firepower. Enter the IED -- the perfect asymmetric weapon. It can be targeted against these soft logistics targets; it can be remote-detonated; it tends to inflict random casualties in whatever it strikes -- including Iraqi citizens on the street.

To deal with the IED threat, the U.S. Army has improvised tactics, techniques and procedures of its own. It has spot-welded armor onto soft-skinned vehicles (see this report in the Chicago Tribune); armed convoys with crew-served weapons that they weren't originally authorized to have on Army MTOE documents; and trained its soldiers how to spot IEDs and deal with them. To manage the threat of secondary ambushes, the Army has trained its soldiers how to accelerate out of the kill zone and fight their way out if necessary. To some extent, these counter-IED tactics have worked. But the enemy retains the initiative in the deployment of these devices, and thus they maintain a tactical edge in deciding where and when to strike.

The trend has started to look good in recent weeks. U.S. countermeasures are working, despite casualty counts that remain high. Furthermore, U.S. efforts to reduce the threat by finding caches of weapons and explosives are also working. The major issue on the horizon is how fresh troops from the U.S. will adjust to the IED threat. It will take some time for them to acquire "situational awareness" when they get to Iraq. As these fresh units climb their learning curves, they will be somewhat vulnerable to the threats that units now in Iraq have learned how to deal with. The planned overlap between outgoing/incoming units will help this; so will pre-deployment training and pre-deployment countermeasures like the addition of armor to HMMWVs.

Update I: For more on the exploits of combat engineers in Iraq, see this article on the 37th Engineer Battalion by Justin Willett of the Fayetteville Observer (the hometown newspaper of the 82nd Airborne Division).

Update II: Also check out this article by Rick Scavetta of Stars & Stripes on the 94th Engineer Battalion, one of the first units to complete a full 365-day tour as part of Operation Iraqi Freedom.

Wednesday, February 4, 2004

Workin' hard for the money

New American labor force flocks to opportunities -- and dangers -- in Iraq

Thursday's Wall Street Journal (subscription required) carries an interesting report from Russell Gold about the mostly-American workers manning the immense private efforts to rebuild Iraq. These individuals work for large contractors like Halliburton and DynCorp, as well as smaller subcontractors brought in for specific projects or pieces of projects. And while the jobs pay well -- annual salaries in the six-figure range are common, and it's tax-free -- they also carry some degree of risk. Here's a brief excerpt from the article:
One recruit is Skip Hoehne, a goateed 26-year-old who had been making $12 an hour hauling chickens in Destin, Fla. He had heard about the job from his brother, who was already in Iraq driving trucks for Halliburton. Mr. Hoehne was drawn by the money and a chance to see the world beyond the Florida panhandle.

The civilian wartime duty, hazardous and uncomfortable, offers a hard-to-find opportunity for blue-collar workers such as Mr. Hoehne: a paycheck of $80,000 to $100,000 and a chance to feel they are serving their country.

The Iraq-bound employees aren't adventure-seeking hired guns, there to bolster military strength. They are unemployed and underemployed workers with few opportunities in a U.S. economy that isn't producing many new jobs. They are willing to drive forklifts, install plumbing and wash clothes in a hostile environment for a substantial salary.

Halliburton, which has an open-ended logistics contract with the Army, has 7,000 workers on the ground in Iraq and is bringing another 500 each week to Houston. It posts fliers at truck stops and takes out banner ads on job-listing Web sites. Most recruits come in by word of mouth. So far, Halliburton has plenty of takers.

Though Halliburton warns frequently of the perils, to Mr. Hoehne, danger seemed far away. "I have the utmost confidence in the U.S. military," he said. "It doesn't matter where we'll go, we'll be escorted and in a convoy."

For Mr. Hoehne and many of the others, the job may open new doors. Relaxing in a blue Hawaiian shirt in a hotel lobby while he waited for his departure date, Mr. Hoehne talked about his dream of starting his own business. He wants to move cars between auto dealers, which he says is more lucrative than his old job. That work didn't pay enough to cover current car payments, child support and savings for the new Ford F-350 truck he will need for his business. His year in Iraq, he hopes, will provide seed money.

Steve "Jersey" Foran, a square-jawed 29-year-old trucker from Vernon, N.J., has business plans of his own. He wants to open a deli or a bar. Mr. Foran said he isn't worried about living conditions, which Halliburton recruiters warn may include dust storms, 130-degree days and living with nine other people in a tent in military compounds. "It will be like a big camping trip," he said. If so, he was told by Halliburton, it will be like a camping trip with sporadic mortar and small-arms fire.
Analysis: That's an interesting description for these jobs, but one that may be quite apt. Generally speaking, these workers will get exactly what they bargain for: a dangerous tour in a combat zone where they wil make more money than they could in two equivalent years in the U.S. Whether it's worth it depends on your personal decision calculus. I looked at similar jobs as I was getting out of the Army, as a backup plan in case I didn't get into law school. The decision calculus didn't quite add up for me then, and I'm not sure that it would now. But clearly, it does for a lot of these workers, as it doesn't appear that Halliburton has any trouble filling its ranks for duty in Iraq.

In the old days, the military used to do everything -- from armored combat to kitchen duty to mail sorting. But the old days are no more. Today's professional force cannot afford to spend manpower the way the conscript-based American army of WWII did. In today's Army, you don't have spare manpower to throw guys at KP, mail duty, security, etc. The force has been pared down to what is mission essential, and manpower is a scarce commodity in many units. In the professional force, the Army has substituted capital and technology for labor in many parts of the force, and there simply aren't the excess soldiers to go around anymore. Thus, many of these ancillary and support functions fall to contractors. Despite the sticker shock of a $100,000 blue collar worker, many of these contractors can actually accomplish these tasks more efficently than a comparable military unit, because you don't have to pay for the institutional costs and overhead associated with a military unit. Think about it -- it's an awfully big waste of money to train a soldier to fight, equip him to fight, pay his sergeants to lead him into the fight, and then assign him to a mess hall for the duration of his tour in Iraq.

At the same time, there are risks associated with the contracting of duties in a combat zone. These government contracts have to be written in such a way that the workers will be taken care of -- i.e. if they're shot, they should have access to U.S. military medicine. Contractors have to ensure their workers are trained on the rules of engagement, and the laws of war, and that they act as non-combatants. And whether it's through the contracting process or in-theater oversight, the U.S. military must maintain control over these contractors to ensure that they are doing things in accordance with American foreign policy.

Every article I've read in the past 10 years on the subject says that battlefield civilian contractors are here to stay -- and that they're probably going to become more common in the 21st Century. If that's true, then we should probably devote more thought to the kind of issues raised by this article.
" constitutional right for the media to embed with U.S. military forces in combat"

Porn publisher's case tests the legal limits of the Pentagon's "embedding" policy

That's the holding of the U.S. Court of Appeals for the District of Columbia in Flynt v. Rumsfeld, a challenge initiated by pornographer Larry Flynt to the Pentagon's rules for embedding journalists with ground forces in the Global War on Terrorism. (Thanks to Chris C. and the Volokhs for the heads up.) The U.S. District Court dismissed the suit on ripeness and standing grounds, but the appeals court decided to go a step further: they held that there was no Constitutional right at issue in this case, that would give publisher Larry Flynt a right to sue for media access to the battlefield. (The Washington Times carries this UPI report on the case) Here's what the judges had to say:
As a threshold matter, it is important to clarify the right appellants seek to protect. In candor, it is not at all clear from appellants' complaint below or briefs in this court precisely what right they believe was violated or contend the courts should vindicate. After some pressing, at oral argument it became clear that they claimed a right, protected under the First Amendment, in their own words, to "go[ ] in [to battle] with the military." This right is different from merely a right to cover war. The Government has no rule at least so far as Flynt has made known to us that prohibits the media from generally covering war. Although it would be dangerous, a media outlet could presumably purchase a vehicle, equip it with the necessary technical equipment, take it to a region in conflict, and cover events there. Such action would not violate Enclosure 3 or any other identified DOD rule.

With that distinction made, appellants' claim comes more sharply into focus. They claim that the Constitution guarantees to the media -- specifically Hustler's correspondent -- the right to travel with military units into combat, with all of the accommodations and protections that entails -- essentially what is currently known as "embedding." Indeed, at oral argument appellants' counsel stated that the military is "obligated to accommodate the press because the press is what informs the electorate as to what our government is doing in war."

* * *
The facial challenge is premised on the assertion that there is a First Amendment right for legitimate press representatives to travel with the military, and to be accommodated and otherwise facilitated by the military in their reporting efforts during combat, subject only to reasonable security and safety restrictions. There is nothing we have found in the Constitution, American history, or our case law to support this claim.

* * *
Likewise, this Court has held that "freedom of speech [and] of the press do not create any per se right of access to government activities simply because such access might lead to more thorough or better reporting." JB Pictures, Inc. v. Dep't of Defense, 86 F.3d 236, 238 (D.C. Cir. 1996). Appellants admit they face a "dearth of case law concerning press access to battles." From this unenviable position, they ask us to look to Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), for guidance.

* * *
Even if Richmond Newspapers applied in this context, and even if there was a historical basis for media access to troops in combat, the Directive would still not violate the First Amendment. Richmond Newspapers expressly stated that "[j]ust as a government may impose reasonable time, place, and manner restrictions" in granting access to public streets, "so may a trial judge impose reasonable limitations on access to a trial." 448 U.S. at 581 n.18. These limitations could be based on the need to maintain a "quiet and orderly setting," or "courtrooms' limited capacity." Id. The Directive appellants challenge is incredibly supportive of media access to the military with only a few limitations. The Directive begins with the command that "[o]pen and independent reporting shall be the principal means of coverage of U.S. military operations." DOD Directive 5122.5 - E3.1.1. It further orders military public affairs officers to "act as liaisons, but [ ] not [to] interfere with the reporting process." Id. at - E3.1.6. Additionally, "field commanders should be instructed to permit journalists to ride on military vehicles and aircraft when possible." Id. at - E3.1.7. The restrictions contained in the Directive are few, including: special operations restrictions; limited restrictions on media communications owing to electromagnetic operational security concerns; use of media pools when the sheer size of interested media is unworkable, such as at the beginning of an operation; and expulsion for members of the media who violate the ground rules. Id. at - E3.1.2.-E3.1.8. Appellants have offered no reason to conclude that these restrictions are unreasonable. Even if Richmond Newspapers did apply, appellants' argument would fail.
Analysis: For what it's worth, Larry Flynt and publishers of risque' material have always been at the forefront of First Amendment law (see, e.g., Hustler Magazine v. Falwell; Flynt v. Ohio), so I'm not surprised to see Flynt Publishing carrying the guidon in this fight. And frankly, I agree with the argument advanced by Flynt in this case -- that the media deserve some Constitutional right of access to the battlefield. That's a controversial position to take, and a position that may conflict with my feelings about military necessity and effectiveness. But ultimately, I believe that Americans have a strong -- even compelling -- interest in media access to the battlefield, because it is their sons and daughters who we are sending into harm's way. Moreover, I do not believe that the people can effectively check the government through democracy if they are not armed with information. The war powers of this country rest with the President and Congress -- the political branches of government -- and the Supreme Court generally defers to the considered wisdom of these branches on national security matters. (See Rostker v. Goldberg) Part of the reason why the courts defer to these two branches on national security matters is the supposed influence of the people upon them. If the people do not have information about the use of America's war powers, gathered by a free media with full access to the battlefield, then the system breaks down.

Like I said, I put military effectiveness at the top of the values I support, because a degradation in that effectiveness could cost the lives of American men and women in harm's way. So I support DoD's right to establish regulations -- even strict regulations -- for operational security and press management that may impede some rights of reporters in the combat zone. But ultimately, I think the media has to be there in the zone, and they have to have the ability to eventually report what they see. So, would I kick Geraldo Rivera out of the zone for reporting on the troop movements of the 101st? Absolutely. But I would also recognize that 99% of reporters in Iraq did the right thing -- and America is better for it.

Moreover, there's a strategic and political argument for embedding that's often missed. Embedding journalists with combat troops ensures that a nominally objective eye will be there to witness anything and everything that happens in combat -- the good, the bad and the ugly. If those journalists also have video/satellite capability, as they did in OIF, then this observation will be enhanced a hundred-fold. The world will be able to see the operations unfold for themselves, and they will be able to judge the wisdom and the virtue of these operations. Embedding is the best antidote for enemy propaganda, and it's also the best antidote for claims that American troops sacked Iraq in search of blood and treasure. At the strategic and political level, military campaigns are as much about hearts and minds -- and ideas -- as they are about casualties lost and territory won. The presence of media on the battlefield aids America in securing those hearts and minds, at least when we commit our military to the right strategic objectives and when our military does the right thing.

The DC Circuit also ignored the long history of battlefield reporting in its decision, sweeping it away with a conclusory statement that such a history does not really exist. The court's opinion states that "the history of press access to military units is not remotely as extensive as public access to criminal trials," and that "No comparable history exists to support a right of media access to U.S. military units in combat." Oh really? I don't mean to insult the venerable judges of the DC Circuit, but haven't you heard of Ernest Hemingway or Ernie Pyle? David Halberstam and Neil Sheehan? Even Benjamin Franklin's newspaper engaged in some war reporting in its day. I've read a fair amount of American military history, and my sense is that war reporting has been an integral part of every American war since the revolution. Moreover, it has typically included some form of embedded reporting -- whether those were reports from journalists serving in the military as correspondents (like Ernie Pyle) or from unilaterals like David Halberstam who simply hopped on a helicopter when he wanted to cover something. (See A Soldiers' Tale, Reporting Vietnam, and Embedded for more on this subject.)

Bottom Line: I think this case was wrongly decided, mostly for policy and political reasons. Granted, I'm no fan of Larry Flynt and I'm not sure what his reporters would contribute to the American debate over the global war on terrorism. But this case now stands for the proposition that the Pentagon can exclude reporters from the places where it sends American men and women because no Constitutional right to media access exists in those places. That's a precedent that's bad for American democracy.
Thoughts on President Bush and the National Guard

Pay records, tax records and retirement records could document the service in question

The story about President George Bush's service in the Alabama Air National Guard during the summer of 1972 has started to grow legs, despite efforts by the White House to cut them off. The Washington Post carried a couple of reports on it yesterday; Josh Marshall devoted a column to it; it made most of the major networks' news shows last night. The Post reports:
The White House, the Republican Party and the Bush-Cheney campaign mounted a choreographed defense yesterday of President Bush's attendance record in the National Guard and denounced Democrats for raising questions about his service.

The messages marked the first time that all the parts of Bush's 2004 political machine have collaborated on a simultaneous line of attack, and reflected his advisers' mounting concern about an issue that they hoped had been put to rest after his election in 2000.

White House press secretary Scott McClellan said during his televised afternoon briefing that it is "a shame that this issue was brought up four years ago during the campaign, and it is a shame that it is being brought up again."

"The president fulfilled his duties. The president was honorably discharged," McClellan said. "I think it is sad to see some stoop to this level, especially so early in an election year."

Bush's aides did not release new information to clear up questions about a one-year gap in the public record of Bush's service in the Texas Air National Guard during the Vietnam War. Bush and his aides have said he reported to an Alabama unit during the period, from May 1972 to May 1973.

No paper record has surfaced that documents Bush's attendance. A former officer of the Alabama unit, to whom Bush was supposed to have reported, repeated on Monday to The Washington Post his assertion that he could not recall seeing Bush on the base. The officer, retired Brig. Gen. William Turnipseed, hedged from a similar statement he made to the Boston Globe in 2000, saying he could not recall if he had been on base much at that time.
Analysis: I've spent some time in the Guard, and I know a little bit about the way that military personnel systems operate. So here are a few separate ways the President can document his Guard service -- or that Democrats can use to document the lack thereof.

1) Attendance records. Guard units aren't like active units, in that they meet on the weekends (or weeknights) on a quasi-regular basis, plus two weeks during the summer. They're part-time units, and the only way they know their readiness is to see their personnel on a regular basis. Tracking attendance is an integral part of measuring this readiness, because a unit isn't fit to fight unless it has its personnel. Thus, every Guard unit I've served in (and every one I've ever heard of) keeps pretty good attendance records. But, in this case, it appears that the attendance records are either missing or incomplete. That's not altogether unbelievable to me. After all, this was 30 years ago, and this was before the age of computers. So let's assume for the sake of argument that President Bush did attend drill, but that the attendance records were lost.

2) Pay Records. If you attend drill, you get paid by Uncle Sam. This is a fundamental principle in the reserves -- federal and state National Guard -- that is true for a variety of reasons. Soldiers join the reserves to earn money and college benefits, and thus pay is very important. Also, Uncle Sam's legal umbrella only covers you for accidents, medical treatment, etc., if you're on duty -- and being paid is the way you know if you're on duty. If President Bush drilled on the dates in question, his attendance would have been compensated by the Guard. (On occasion, Guard officers do volunteer their time, especially when they're in a critical position like company command. But the President says he was doing menial paperwork, so I don't think he was volunteering his time on weekends) In any event, even if the President's attendance records were lost, his attendance at drill would have generated pay. That should have also resulted in the creation of pay records, and/or bank records documenting the receipt of that pay.

3) Retirement Points. If the President attended drill during the summer of 1972, he would have received retirement points for those drill dates. Different units use different means for the computation of these points, but they're generally computed using either pay or attendance records. If President Bush attended drill for the dates in question, his attendance should have generated something on his Guard retirement report for those dates. (A copy of the President's retirement points report for 1973 is available online.) In all likelihood, he would have received a rollup of his retirement credit for 1972 that indicated he did not serve the requisite number of days on duty in order to earn credit for a year towards retirement.

4) Income Tax Records. As stated in #1 and #2 above, the President's drill attendance would have almost surely been paid attendance. Military income is taxable, both as a matter of federal law and state law, although there are exceptions for income earned in a combat zone (not the case here), housing pay, flight pay, and other special forms of military income. The AL National Guard (or the TX National Guard if it were paying him) would have reported this income to the IRS, along with any withholding it kept from these paychecks. (Note: there's no state income tax in TX, so there's no state tax records to speak of here.) President Bush would have had the legal duty to report this income on his tax returns. Like the records above, these tax returns could positively establish that President Bush attended drill by the receipt of income for it. But the President hasn't come forward with these returns yet, possibly because he doesn't keep his returns going back that far. Update: It's not clear whether the IRS keeps tax records going back this far; several tax lawyers and accountants have written me that the IRS only keeps such records going back as far as its criminal and civil statutes of limitations. I'm not sure -- I think these documents may be archived in some form, somewhere. If they are, the President has the personal power to request production of them. And since the IRS does nominally work for the President, he could presumably influence them to respond to his request with all due diligence.

5) DD 214. (Thanks to Mark Kleiman for the reminder on this one) The DD 214 form is given to every soldier when he/she leaves the service as the official legal record of military service rendered. It contains data on the soldier's legal residence, military schooling, military duty stations, and time served in the military on active duty, among other things. However, I'm not sure whether the DD 214 form, as filled out today or in 1973, would reflect days served in a National Guard drill status. (There's a technical/legal difference between active duty and National Guard drill duty.)

If a DD 214 was generated, it form would indicate the soldier's "reenlistment code" on the bottom of the form, which is used to characterize the soldier's past service and potential for future service. If the President had any adverse disciplinary action on active duty, this code would reveal that. But I haven't heard of any such action, so I doubt this RE code reveals anything worthwhile. (Note: a reader who served in the 1970s military reports that the DD 214 used "Separation Program Numbers" to denote the type of discharge given, not RE codes, and that an honorable discharge was the default type given to any serviceperson without formal UCMJ action on his/her record.)

Update: The President probably never received a DD 214 for his state National Guard service. A couple of readers have written to tell me that it's possible such a federal form wouldn't have been used anyway by the Texas Air National Guard to document the President's discharge. I checked this with a couple of old California guardsmen that I know and they verify this. (For what it's worth, I never received a DD214 from the Guard either -- just a transfer order.) That's because the DD 214 is a federal form used to document active federal service, not National Guard service and certainly not National Guard drill attendance.

However, the National Guard has an equivalent form, and a copy of the President's NGB 22 form (Report of Separation and Record of Service) has surfaced. This redacted copy looks authentic to me. It characterizes the President's service as "honorable", which is not surprising because that's what he says, and it's the default type of discharge for nearly all servicemembers. The form also documents the President's aggregate service dates, from 1968-1973, including his brief term as an enlisted airman in 1968. However, the form does not detail any of the President's drill attendance dates, nor does it give a detailed characterization of service in the form of a Separation Program Number or Reenlistment Code. Additionally, the same website produces copies of the front and back page of the President's evaluation report for this year -- a report which leaves much to the imagination about the President's service during this period.

The Big Caveat: Things slip through the cracks in the reserves -- especially when you're drilling away from your home unit and you're trying to get paid for that duty. I know because I've been there. I requested permission from my California Army National Guard commander to drill in Washington DC during the summer of 2002, where I was interning after my first year of law school. Suffice to say, there were some administrative snafus, and I'm sure I was reported absent at my unit for the drill weekends I missed even though I had an alternate drill plan approved. (I didn't get my pay straightened out until I returned to California at the end of the summer, among other things.) It's possible that President Bush did attend drill, but that he never got paid for it, and that he never pushed the issue because wasn't in a bad spot financially so as to need the money. Possible -- but not probable. The military pay system doesn't discriminate on the basis of socio-economic status. And more importantly, military pay is used in the reserves to measure whether you're on active duty for legal purposes, and units generally don't let soldiers perform duty for no pay because of this.

It's also possible that the Alabama National Guard's records were so bad that none of the aforementioned records exist today -- either because the state policies directed their destruction after 5, 10, or 20 years, or because they just weren't kept well at all. That's believable for the attendance records, which are often kept at the unit level -- but not for pay, retirement, and tax records, which are kept at a higher-level headquarters. It's possible that the lack of records supports the President here, but not probable. But let's remember that President Bush is the Commander-in-Chief. If he served on these dates and he thought there might be records to prove that service, he could easily order the production of those documents -- either from the military or the IRS.

So if I were a reporter sitting in the White House press room, asking questions of Scott McClellan, I'd start asking about his pay records, retirement records, and tax records from 1972. Even if the attendance records are gone -- there are still plenty of ways to document the President's service. It's entirely possible that these records exist, and that they will document the President's honorable service in the National Guard. But only the records can show that conclusively.

Update: Some reporter did try to ask this question today, but he was dismissed with a brusque answer from the White House press secretary. Here's the transcript from Wednesday's White House press briefing.
Q How is the President going to counter Democratic challenges that he got preferential treatment while serving in the National Guard during Vietnam?

MR. McCLELLAN: I think we went through this issue four years ago and I went through this issue yesterday. And I will leave it where I left it yesterday.
Where, exactly, was that? It seems to me like the issue remained open yesterday. If someone were casting my military service in a bad light, I'd be the first guy to produce the documents that said otherwise. I can understand the impulse to play this one down, given the military credentials of the presumptive Democratic presidential nominee. But I think that brushing aside these inquiries will only make people more curious. More to follow...

Tuesday, February 3, 2004

Lighter, faster, more flexible

How should America transform its Army for the 21st Century?

Defense Secretary Donald Rumsfeld writes his answer to that question on the op-ed page of Tuesday's Wall Street Journal (subscription required). The Secretary starts by citing the victories in Afghanistan and Iraq, but quickly moves on to say that those victories have not yet been fully realized. Next, he acknowledges that the strain on America's military today is quite great -- "the increased demand is real." The solution, Rumsfeld argues, is for a more flexible military built around modular brigades which leverage existing personnel strength to essentially do more with less.
Another way of relieving the increased demand on the force is to add more people -- and we have done that as well. Using the emergency powers granted to the president by Congress, since September 2001 we have increased active force levels above authorized levels -- by 33,000, or more at times. If the situation demands it, we will not hesitate to add still more -- whatever is needed. However, the fact that we have to increase force levels at all should give us pause. U.S. Armed Forces currently total about 2.6 million men and women -- 1.4 million active forces, 876,000 guard and reserve in units, and 287,000 individual ready reserves. Yet despite these large numbers, the deployment of 115,000 troops to Iraq has required that we temporarily increase the size of the force.

That should tell us something. It tells us that the real problem is not necessarily the size of our active and reserve military components, per se, but rather how forces have been managed, and the mix of capabilities at our disposal.

* * *
Our real problem is that the way our total force is presently managed, we have to use many of the same people over and over again. In Gen. Schoomaker's analogy, the answer is not a bigger barrel of more than the current 2.6 million men and women available, but to move the spigot down, so more of the potentially available troops are accessible, usable, and available to defend our nation. The department must promptly reorganize to gain better access to the fine men and women who make up the all-volunteer force, and to ensure we have the skills needed available as and when needed. Clearly, we are not doing so today.

* * *
We are working hard to fix that -- by rebalancing skill sets within the Reserve component and between the active and reserve force. In 2003, we rebalanced some 10,000 positions. We expect to have rebalanced a total of 50,000 positions by the end of next year. Simultaneously, the services are transforming to increase combat capability while relieving demand on the forces. For example, the Army has put forward a plan that, when implemented, will use our emergency authorities to bring the Army's temporary strength up by nearly 30,000 troops above its peacetime statutory limit -- it is today about 7,000 above that limit. But the proposal is to use that increase, and all the movement in the system during the force deployments and redeployments, to increase the Army's combat power by up to 30%. How? Instead of simply adding more Divisions, the Army is focusing instead on creating a "Modular Army" comprised of smaller, self-contained brigades that would be interchangeable, available to work for any Division.
Analysis: First of all, I think the Secretary understates the strain on the military that exists today. Elsewhere in his piece, Secretary Rumsfeld says that we should not worry about the reserves because we've only tapped into 36% of the Selected Reserve. That is true -- but we've tapped into the most ready 36% of the reserves. When Operation Enduring Freedom and Operation Iraqi Freedom generated requirements for troop units, military planners didn't take a uniform slice of the reserves from every part of the force. They took the best units they could find, because it only makes sense to send the best units you have to the place where they're actually shooting bullets at you. Many of the units left behind were fenced for future deployments, like the enhanced National Guard brigades now on their way to Iraq. But many more reserve units were left alone because they're hollow units, or because their capabilities don't match the mission. This has been exacerbated by the tendency in the Army Reserve and National Guard to cannibalize units staying behind to fill deploying units to 100% strength -- both in terms of personnel and equipment. Thus, many of the units left behind are in no condition to do anything, whether it's deploy to the airports to provide security or deploy to Iraq.

Additionally, current attrition numbers and future attrition estimates indicate a looming exodus of reserve personnel at the end of their current deployments -- something which has been staved off by "stop loss" policies thus far. If the reserves hemorrhage personnel at the rates expected, there won't be much left in America's reserve for the next fight.

Second, I think that Secretary Rumsfeld overstates his enthusiasm for transformation of the Army. The fact of the matter is that he has not put his money where his mouth is, to use the old aphorism. The 3rd Infantry Division, which he refers to in his article, has been directed to reshape itself into 5 modular "units of action" from its current structure of a division with 3 maneuver brigades. But it hasn't been given the authority to add extra personnel or equipment -- it has been told to do this in zero-sum fashion.

The Stryker Brigade, in contrast, has received billions of dollars over the past few years, both to buy its new vehicles and to conduct a variety of exercises. But it's not clear that the Stryker brigade represents true transformation, or the ability to do anything more than sent a conventional brigade into contact with new light armored vehicles. Their doctrine is a rewritten version of the 1965 manual for an M113-equipped brigade, and the new brigade doesn't include the kind of full-spectrum capability envisioned to fight tomorrow's wars. Its structure was changed in the design phase to strip out much of the logistical and combat-support capability that would give it more staying power and more full-spectrum capability, and its headquarters was cut by nearly 100 personnel -- including those responsible for coordinating with NGOs and other agencies. The Stryker brigade is a great first step, and by all accounts, it's doing well in Iraq. But it is much more evolutional than transformational -- and it is not necessarily the solution for tomorrow's threats.

Tomorrow's threats will require a strong military, but it will also require a different military than the one America built to fight the Cold War. We have successfully adapted our Cold War military to meet the threats of the 1990s, but that change isn't enough. Neither are the changes advanced by Secretary Rumsfeld; at least, not without more resources. Tomorrow's force must be rapidly deployable, with the capability to fight tonight (and not after sitting 6 months in the desert), with the capability to conduct any operation on the spectrum from peace to war -- and it must be able to sustain itself for the longer task of nation building that comes after any war. There are some ideas (see here and here) out there for how to make this force, but the real answers are still hidden. It may be time for another "bottom up review" -- another holistic review of defense policy from soup to nuts, soldier to SecDef -- that assesses the threat and what it will take to fight it.

Update: Lawrence Korb, who served as an Assistant Secretary of Defense in the Reagan Administration, thinks the Rumsfeld plan for defense transformation adds up to a big pile of pork -- and says so in Wednesday's Wall Street Journal. Korb's also not a fan of the current U.S. national security policy, which he says has led to a skewed sense of priorities in the defense budget for next year.
The new strategy should lead to changes in the defense budget. But rather than wait for President Bush, Congress should take the following measures now: First, to enable the Army to meet its global commitments, the size of the active Army should be increased by 40,000, permanently. This should be done by transferring peacekeeping-type functions to the active component and creating a new active-duty division dedicated to stabilization and reconstruction. Second, the number of WMD support teams in the National Guard, which are designed to assist local authorities in the event of a biological, chemical or nuclear attack on the homeland, should be increased from 32 to 100. Finally, funding for the Nunn-Lugar Cooperative Threat Reduction Program, which helps the states of the former Soviet Union protect and destroy their nuclear weapons, materials and delivery systems, should be increased from its current level of $450 million to at least $2 billion.

The administration will complain, as Donald Rumsfeld always has, that it cannot afford to add these programs and still fund its transformation efforts. However, keeping the national missile program in a R&D; mode until the technology is proven will save $5 billion. Canceling the blighted F-22 fighter and continuing the production of F-16 Block 60s until the Joint Strike Fighters come along would save $3 billion a year. Finally, canceling the Virginia class submarine, and instead relying on the existing Los Angeles class, will save another $2 billion. These steps alone will more than cover the needed additions.
Fred Kaplan agrees, and writes in his Slate column that the Pentagon would do well to cancel or scale back several major defense projects currently scheduled to receive billions in the FY2005 budget.
Yes, we live in a dangerous world. Yes, we must support our troops with decent pay and the finest hardware. Yes, an uncertain future requires us to maintain an adequate technical and industrial base. But does even a conservative extrapolation of these mandates require spending nearly half a trillion dollars?

An enormous portion of this military budget, quite plainly, has nothing to do with Iraq, al-Qaida, the spectrum of new threats, or the American military's new doctrine of "transformation" and lighter, more mobile forces. Here are some examples:
- Stealth aircraft.
- Ships and submarines.
- Comanche helicopters.
- Missile defense.
Bottom Line: The fight over the FY2005 budget is not just a fight over money, machines or manpower -- it's a fight over the very direction of American national security policy, and competing visions of the military that America must build to secure the nation in the 21st Century.
Islam v. the West, through the eyes of Bernard Lewis

The Wall Street Journal (subscription required) has a brilliantly written article by Peter Waldman on today's front page about Princeton historian Bernard Lewis. The article discusses Prof. Lewis' scholarship, and the role that his ideas have played in shaping America's view of Islam in the 20th and 21st Centuries.
Bernard Lewis often tells audiences about an encounter he once had in Jordan. The Princeton University historian, author of more than 20 books on Islam and the Middle East, says he was chatting with Arab friends in Amman when one of them trotted out an argument familiar in that part of the world.

"We have time, we can wait," he quotes the Jordanian as saying. "We got rid of the Crusaders. We got rid of the Turks. We'll get rid of the Jews."

Hearing this claim "one too many times," Mr. Lewis says, he politely shot back, "Excuse me, but you've got your history wrong. The Turks got rid of the Crusaders. The British got rid of the Turks. The Jews got rid of the British. I wonder who is coming here next."

The vignette, recounted in the 87-year-old scholar's native British accent, always garners laughs. Yet he tells it to underscore a serious point. Most Islamic countries have failed miserably at modernizing their societies, he contends, beckoning outsiders -- this time, Americans -- to intervene.

Call it the Lewis Doctrine. Though never debated in Congress or sanctified by presidential decree, Mr. Lewis's diagnosis of the Muslim world's malaise, and his call for a U.S. military invasion to seed democracy in the Mideast, have helped define the boldest shift in U.S. foreign policy in 50 years. The occupation of Iraq is putting the doctrine to the test.
Very interesting... try to pick up today's Journal if you can to read the whole thing. I'm skeptical of the latest tectonic shift in American foreign policy, and I think its wisdom will likely be debated for some time. But this article does a good job of summing up Prof. Lewis' views (if that's possible), and drawing the link between those views and contemporary U.S. policy. Definitely worth a read.
Pre-war intelligence -- a historical oxymoron?

Slate answers that question in the affirmative with this History Lesson column from Matthew Wall, a journalist now writing a book on the U.S. invasion of Grenada. The basic argument is nothing new -- that America has often stumbled or blundered into its major wars. But obviously, this historical perspective has a new meaning today with the relevations of faulty intelligence that led America into Operation Iraqi Freedom. Here's one of the excerpts that Mr. Wall offers:
The Spanish-American War and the Sinking of the USS Maine, 1898: For the generation of 1898, the phrase "Remember the Maine" was as powerful as "Remember Pearl Harbor" was to the Greatest Generation and "Remember the Alamo" was to the John Wayne generation. The USS Maine was dispatched to Havana, Cuba, on Jan. 24, 1898, on a flag-showing mission whose ostensible purpose was to "protect American lives and property" during the growing Cuban uprising against Spanish colonial rule. On the evening of Feb. 15, quietly at anchor, the Maine exploded, sinking the ship and killing 266 crew members.

The U.S. Navy convened a board of inquiry, which declared, without any forensic evidence of the wreck itself, that the sinking was due to a mine dispatched by unknown parties. The yellow press, public, and President McKinley eagerly seized on this as an attack by Spain and a reason to go to war.

Subsequent investigations in 1976 and in the 1990s strongly suggest the explosion was caused by bad coal-handling procedures, which spontaneously combusted the fuel and in turn set off the poorly located ammunition magazine nearby. In other words, the Navy blew up its own ship accidentally.

As for the Pig War between the U.S. and Britain in 1859 ... oh, let's not go there. We don't want to stir up hard feelings at 10 Downing Street.
Analysis: I liked this article, and I think it puts an interesting spin on a very important subject. But I'd say that it misses a couple of major points in order to stay on-topic and stay brief. (1) The U.S. has unprecedented ISR (intelligence, surveillance, reconnaissance) capability today that should mitigate the problem of faulty pre-war intelligence. But it doesn't because our ISR capability has gaps, and those gaps precisely mirror the threats we now seek to preempt like terrorism and rogue state WMD production. (2) America's stumbling and fumbling into war has had some utility, insofar as it has given us the casus belli of self-defense in a number of situations (like Pearl Harbor). Tactically, we committed a horrendous blunder by letting our guard down and ignoring the intelligence we had in the Pacific. But strategically, doing so may have given America the will to fight that was necessary to win WWII. Historians can quibble about the tactical points, but I think it's well settled that America's popular raison d'etre in WWII was revenge for Pearl Harbor -- at least the propaganda machine kicked up against the Germans and Italians.

So, here we are in 2004. We are now engaged in a war against a shadowy enemy dubbed "terrorism" that can't even be precisely defined, let alone quantified in terms of victory and defeat. Even our Secretary of Defense is unsure about how to measure success or failure in this war. Intelligence has never been more important than today, because of the potential this enemy has to strike our homeland and inflict civilian casualties. Yet, we still have gaps. In the coming fight over the President's $2 trillion+ budget, I hope that intelligence capabilities get more than a passing argument.

Monday, February 2, 2004

Equal opportunity satire
: Slate has posted a series of 1971 Doonesbury cartoons by Garry Trudeau which take potshots at then-Vietnam Vet Against the War (now presidential candidate) John Kerry. I've always been a Doonesbury fan; it was one of my first introductions to politics as a child reading the funny section of the Los Angeles Times (that's not meant to be a pun). I'm not surprised to see how well these cartoons (from before I was born) nail John Kerry. But I'm sure he's changed a lot since then. I'm sure John Kerry's time in politics has made him less willing to run to the sight of a press gaggle and the sound of clicking cameras.


On a more serious note, it seems the campaign story du jour is the battle of the veterans -- Kerry vs. Clark -- and who will win the loyalty of this voting block, and the votes of those who listen to the opinions of this voting block. (I tend to see veterans as an important opinion leader block, rather than an important voting block per se.) Here's a sample of what the wires have to report on this battle:

Kerry, Clark vie for veterans' votes
By Dave Montgomery
Star-Telegram Washington bureau

WASHINGTON -- One solemnly recalls shared hardships with his "band of brothers" on a Navy swiftboat in the Mekong Delta. The other presents himself as a leader of "the highest level," a former allied commander who freed a nation from an oppressive dictator.

As they battle each other for the Democratic presidential nomination, retired Gen. Wesley Clark and former Navy Lt. John Kerry are showcasing contrasting military credentials to appeal to legions of veterans in the South and Southwest.

More than 1.6 million military retirees live in Arizona, New Mexico, Oklahoma and South Carolina, four of the seven states that will conduct presidential contests on Tuesday. Another 1.7 million make their home in Texas, which holds a presidential primary on March 9.

While seven candidates remain in the race, the face-off between Kerry and Clark resonates with elements of a soldier's story, pitting two men of different rank and differing backgrounds, but each with distinguished wartime records that play well among patriotic, conservative-oriented voters in the Sunbelt.

Kerry, Clark battle for votes of South Carolina military veterans
By Anna Griffin and Roddie A. Burris
Knight Ridder Newspapers

SUMTER, S.C. - In VFW halls and American Legion canteens across South Carolina, there's a quiet battle for the hearts and votes of military veterans.

Massachusetts Sen. John Kerry and retired Gen. Wesley Clark believe veterans are crucial to their chances of beating North Carolina Sen. John Edwards in Tuesday's South Carolina primary.

Kerry Stresses Military Past:
He Invokes Vietnam Service to Reach Voters, Push Agenda

By John F. Harris
Washington Post Staff Writer
Sunday, February 1, 2004; Page A04

COLUMBIA, S.C. -- If Sen. John F. Kerry (D-Mass.) continues on a successful march toward the Democratic presidential nomination, there are three words people probably will be hearing a lot of between now and November: "band of brothers."

Penned by William Shakespeare, the phrase has become an unofficial slogan for the candidate as he repeatedly invokes his Vietnam military service and introduces his fellow veterans to audiences on the campaign trail. In Iowa and New Hampshire, Kerry's citation of his war experiences helped humanize a politician whose austere demeanor had left him struggling to connect with voters.

As campaign heats up, veterans taking sides
By Patrick Healy, Globe Staff, 2/1/2004

COLUMBIA, S. C. - Johnny James is already envisioning the day as a landmark in American history: On Jan. 20, 2005, the president-elect, John F. Kerry, is the first veteran to serve in Vietnam to take the oath of office, delivering the inaugural address at the US Capitol near where he once threw his military ribbons in a trash bin as an antiwar protester.

* * *
Kerry is counting on Democrats like James to help him continue his winning streak in Tuesday's primaries in South Carolina (where more than 400,000 veterans live), Missouri (with more than 500,000), and other key states that vote this winter. Both his pollsters and his friend McCain, the Arizona Republican who ran for president in 2000, have told him that organizing military families could make a huge difference to winning both the nomination and Election Day. Republican pollster Celinda Lake also concluded last fall that veterans and their relatives would be a swing voting bloc in 2004.

* * *
Kerry himself mentions veterans in almost every speech, and holds forums with veterans almost every week - including one here Friday and in Oklahoma City yesterday. He pledges to improve their health care, protect their benefits, and challenge President Bush, often saying that ``the first definition of patriotism is keeping faith with those who wore the uniform of our country.''
Hey, I'm all for veterans. But I'm not sure this tide is going to carry John Kerry, Wes Clark or any other Democrat into the White House. Despite the mudslinging at President Bush about his Air National Guard record, he is a veteran in every legal sense of the word that I know. More importantly, however, he is a veteran of the White House in wartime. This course of attack may fall flat against a President who has led America through two wars, and a massive homeland security effort that some might call a war. While I think that Americans value military service, and they certainly respect men and women like John Kerry and Wes Clark who have been decorated for bravery in combat, they want more from a President. Even with Iraq and terrorism in the headlines, American voters will make part of their 2004 choice on the basis of a candidate's domestic agenda -- health care, the economy, education, the environment, and all those other issues which have very little to do with veteran status. We'll see how long this story lasts, and whether it has enough traction to stick until November. I doubt it will stay around much longer than super Tuesday... more to follow.
Interesting interview
: Howard Bashman has an interview today with Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit. Judge Reinhardt has been described as the "rudder which steers the 9th Circuit to the left"; he recently authored a decision on America's detentions at Guantanamo that squarely rejected the Bush Administration's arguments on jurisdiction and the role of the courts. But irrespective of his politics or ideology, he is one of the most prolific and well-respected jurists in America today. His interview covers everything from the politics of confirmation to the politics of judicial precedent -- take a look.

Also, Howard announces some important news of his own today: his decision to leave the chairmanship of Buchanan Ingersoll's appellate department in order to start an appellate litigation firm of his own. Good luck on your new endeavor, Howard -- I'm sure your new firm will exceed all expectations.