Friday, February 13, 2004

Out of the net
: I'm traveling this weekend and won't have access to my e-mail, my laptop or my news feed. Intel Dump will pick up again on Tuesday.
President Bush orders the release of all National Guard records

The Associated Press reports that President Bush has authorized the release of his entire National Guard record to refute criticism that he did something less than his duty as a Texas Air National Guard officer during the Vietnam War. This after a week of sporadically releasing parts of his records, including his pay records, retirement point reports, and even dental records. In theory (and hopefully in fact), the truth about the President's military record lies within these hundreds of pages about to be released.
Hundreds of pages of documents detailed Bush's service in the Guard in Texas and his temporary duty in Alabama while working on a political campaign there in the early 1970s. Democrats have questioned whether Bush ever showed up for duty in Alabama.

"The president felt everything should be made available to the public,'' White House press secretary Scott McClellan said. "There were some who sought to leave a wrong impression that there was something to hide when there is not.''

Bush's medical records -- dozens of pages in all -- were opened for examination by reporters in the Roosevelt Room, but the material was not being distributed publicly.

The records documented that Bush, a pilot, was suspended from flying status beginning Aug. 1, 1972, because of his failure to have an annual medical examination. His last flight exam was on May 15, 1971.
Analysis: This is the kind of full release that I think most people expected after the President's interview on Meet the Press, where he said:
Russert: Would you authorize the release of everything to settle this?

President Bush: Yes, absolutely. We did so in 2000, by the way.
Now that the pay stubs and retirement records have been released, we may have started to get a handle on the *quantity* of the President's National Guard service. These records look inconclusive right now, especially about the summer of 1972, but let's stipulate for the moment that this issue will eventually be resolved. The records being released tonight will probably shed a lot of light on this question.

The rest of the President's personnel records - particularly his evaluation reports for the entire period of duty - are as important because they indicate the *quality* of his service.
- Was he really the kind of junior officer that we now want to be Commander-in-Chief?
- Was he, to use the term of art, a "sh*t-hot" pilot?
- Was then-Lieutenant Bush a natural leader? An effective officer?
- Did the President do his duty, or did he just show up for duty?

The evaluation reports will show all of this. Generally speaking, all such reports are written positively, with degrees of praise indicating the quality of an officer. (Example: a slacker officer's report says he "performed his duties well" or "met the standard", plus a lot of boilerplate language. A stud officer's report says he/she "performed his duties in an outstanding manner" and "always exceeded or set the standard".) Damning by faint praise is common in officer evaluation reports where an officer's performance is mediocre, but not so bad as to merit being spiked on the report. So you might have to engage in some interpretation to divine what his evaluations really mean. But the contents of these evaluations are relevant, because they will indicate the quality of the President's performance. And to me, these evaluations of his quality are more important than whether he missed an occasional drill.
Lies, damned lies and statistics

The Los Angeles Times has a tongue-in-cheek story today about romance and traffic -- specifically, how crosstown romances rarely work because L.A. traffic imposes such an opportunity cost on any such relationship. I was mildly amused by the story, having experienced my share of this situation in L.A. where getting from Santa Monica to UCLA (just 5 miles) can occasionally take 30-45 minutes. But when I got to this section, the article stopped me in my tracks:
Nationwide, 30.3% of males older than 15 have never married, according to the 2000 census. But in Los Angeles, 37.9% of the guys are stuck in bachelorhood. For women across the country, 24.1% of those older than 15 have never married. In Los Angeles, 30.5% are single.

Behind the statistics, other factors are surely at play. Maybe Angelenos are just picky. But cohabiting or married couples say they, too, are suffering the toll of congestion. How can a long, numbing, energy-sapping commute put anyone in the mood for love?
Huh??? Why would the statistic of marriage over the age of 15 be relevant? Are there really that many love-struck long-distance-romance high schoolers in L.A. that we should be concerned? I didn't even know that you could marry if you were 15, 16, or 17. And I'm certainly puzzled about why this would be relevant in a story about L.A. love angst. Why should we care if a 16-year-old hasn't married yet? Are they trying to make some statement about the love prospects of California's car-driving population? (This state's driving age is 16.) I just don't get it. Maybe the editor and reporter have a message they're trying to convey with this statistic, but it's lost on me. All I think after reading this article is how badly most newspapers use quantitative facts, and how right Mark Twain was about statistics.
1st Cav platoon regroups from losses in Iraq

Greg Jaffe has an interesting article on the front page of today's Wall Street Journal (subscription required) about a platoon in Iraq which has taken so many losses as to be declared "combat ineffective" by its senior commanders, only to regroup with replacements and new leadership in order to return to the fight. The platoon was sent with an element of the 1st Cavalry Division from Fort Hood, TX, to Iraq five months ago to augment the combat forces in Iraq (the rest of 1st Cav is currently on its way to Iraq as part of the second Iraq force rotation). In the time it has been there, the platoon has seen nearly 1/3 of its number killed or badly wounded, including three platoon leaders.
This small unit -- the third platoon of the First Cavalry Division's Bravo Company -- has been hit harder than any other in Iraq, Army officials believe. A few days after the bombing Army officials declared the unit "combat ineffective," a rare designation indicating that it has suffered such a large number of casualties that it can't continue fighting without new equipment and people. Then they sent the unit here to Ramadi, about 60 miles west of Baghdad and about 15 miles from their old home in Khaldiya, to rest and regroup.

Here, it has picked up nine new soldiers and its fourth platoon leader -- a 26-year-old Army captain named Jesse Beaudin, whose job it is to both reconstitute the platoon and help it recover from its emotional wounds.

"I know you have been through a lot together," Capt. Beaudin told his platoon shortly after taking charge. "Over the next couple of days, I want to get to know all of you. And I want to get you back in the fight."

It won't be easy. In just five months, the platoon has endured the full range of attacks that American forces have encountered. Fear and grief have given way to anger -- anger at the very Iraqi people the U.S. is trying to win over to its side.

Anger is what most worries Capt. Beaudin. Battling an insurgency requires an exceptionally disciplined force. Troops must be able to track and kill the enemy at the same time they work to win over a suspicious population. Several of his soldiers have told Capt. Beaudin they don't want to have anything to do with Iraqis.
Analysis: It's hard to generalize from the example of one platoon, because so much depends on the mixture of soldiers and leaders in any particular unit. However, I doubt that these issues are unique to CPT Beaudin's platoon -- although they may be exacerbated there because of the losses. Prolonged exposure to combat has always had an effect on unit performance. There is a large body of literature (see Acts of War, Men Against Fire, On Killing, and A War of Nerves) on exactly what these effects are. In general, it is prudent to rotate units out of contact from time to time to decompress, reconstitute, train on fundamental tasks, and rest. If you don't, you risk having an explosion of combat stress in those units, as well as a drop in unit effectiveness. I think the Army's decision to pull this platoon out of the line reflects this wisdom, as well as on-the-ground judgment that these soldiers needed to be reconstituted into a new cohesive unit before seeing more action.

Thursday, February 12, 2004

Calling all media -- military commissions set to start soon

The Pentagon invited American and international news bureau chiefs today to submit requests for media access for military commissions (aka military tribunals) which are set to begin soon at Guantanamo Bay. Here's what the release had to say:
It is possible that one or more enemy combatants suspected of having violated the laws of war could face trial by military commission. To the extent possible, the Department of Defense intends to open the proceedings for media coverage. If conducted, these proceedings will most likely take place at the U. S. Naval Base in Guantanamo Bay, Cuba.

Coverage opportunities will be based on available space and offered to both U.S. and international media outlets. The department is compiling a list of news organizations interested in covering the proceedings. Bureau chiefs are invited to go to and submit their news organization's interest. Deadline for submissions is noon (EST) Tuesday, Feb. 17, 2004. The Department of Defense will confirm receipt of all submissions via email. Selection criteria for media invited to cover the proceedings will include reach, audience, and medium.

A rotation will be established for qualifying media. Once selected, media organizations and individual correspondents will be provided a copy of the ground rules and operating procedures. The Defense Department Press Office points of contact are: Maj. Michael Shavers, Ms. Nicole Deaner, or Lt. Cmdr. Barbara Burfeind, at
Analysis: They're getting closer... more to follow...

Update: Neil Lewis (legal reporter) and Eric Schmitt (defense reporter) write in Friday's New York Times that the Guantanamo detentions may last for several more years to come. Also, the administration is considering the establishment of a parole board of sorts to adjudicate which prisoners should be released in the near future. Defense Secretary Donald Rumsfeld is slated to speak on these issues today (Friday), according to the LA Times. Notwithstanding that panel, senior defense officials said that they may keep a large portion of the Gitmo detainees in custody for years to come -- if not indefinitely.
The officials said they would soon set up a panel to review those long-term prisoners' cases annually to determine whether the men remained a threat to the United States or could be released.

The officials described the panel as a "quasi-parole board" that would comprise three members before whom prisoners could personally plead their case for release. At the same time, the officials said, in the coming months they will continue to release to the home governments many other prisoners deemed not to be a continuing danger.

The officials spoke as part of a Pentagon effort to counter sharp criticism by members of human rights groups and foreign governments about the situation at Guantánamo, where some 650 people, most of them captured in Afghanistan, are being held under maximum security, some as long as two years without being charged with any offense. Defense Secretary Donald H. Rumsfeld is scheduled to discuss the matter in a speech Friday in Miami.

One senior Defense Department official who spoke on condition of anonymity said critics in the United States and abroad had greatly misunderstood the situation at Guantánamo and the need to detain so many people without charging them.

"We feel very much like we are in an active war," said the official, asserting that the civilian law enforcement model in which people are prosecuted for crimes or set free did not apply. "What we're doing at Guantánamo is more understandable in the war context," the official said.

* * *
The argument that the detentions should be seen in a wartime context is, however, unlikely to satisfy many critics. Michael Ratner, the president of the Center for Constitutional Rights, said that "the idea that you could theoretically keep someone locked up forever under these circumstances is reprehensible." Mr. Ratner, whose New York-based organization has challenged the Guantánamo detentions, said he was taken aback by what he called the administration's brazenness.
Analysis: It would be a gross understatement to say there's a difference of opinion between the administration and the more centrist/liberal parts of the legal community as exemplified by the CCR statement above. This story is sure to inflame the debate over Gitmo more, and critics will probably pounce on 1) the fact that the detentions can be indefinite, and 2) the "quasi-parole-board" which may not have sufficient procedural and substantive protections to satisfy the critics. (Query: is such a board a "competent tribunal" within the meaning of Art. V, 3rd Geneva Convention?) I don't think this story will help the administration very much at all; it would've been better (politically) to leave some public doubt as to the length of the Gitmo detentions.

Legally, it will be a challenge to reconcile the separate systems in play here. The international laws of war (also known as the laws of armed conflict) do allow a government to detain POWs for the duration of hostilities, and that is a well-settled and time-honored proposition under the 3rd Geneva Convention and its predecessor treaties and customs. The practice of taking prisoners dates back centuries, and its legitimacy as a state action has never seriously been questioned in international law. On the other hand, the U.S. Constitutional system of criminal justice contains certain procedural systems which are triggered by the detention of anyone in the criminal justice system. These include the right to counsel, the right to a speedy trial, the right to stop interrogations by the invocation of the Miranda right or right to counsel, etc. I think there's a pretty good argument for not extending these procedures to the men at Guantanamo, or the battlefield POWs in Iraq for that matter, and I think most would agree with that. But there is a rising chorus in the legal community that says we must give some kind of legal process to the men at Guantanamo. Does that mean military commissions? Criminal trials? A "quasi-parole-board"? More to follow...
National Guard soldier arrested on suspicion of ties to Al Qaeda

The AP reports that Army National Guard SPC Ryan G. Anderson has been arrested at Fort Lewis, Washington, for allegedly trying to pass information to Al Qaeda. Anderson belongs to the 81st Armored Brigade, an enhanced-readiness National Guard brigade which has been mobilized for deployment to Iraq in the next few months. The Army refuses to give any details about the arrest, except that SPC Anderson has been charged with "aiding the enemy by wrongfully attempting to communicate and give intelligence to al-Qaida." According to the AP:
Defense officials speaking on the condition of anonymity said Spc. Ryan G. Anderson, 26, signed onto extremist Internet chat rooms and tried to get in touch with al-Qaida operatives, offering the organization information on U.S. military capabilities and weaponry.

It is unclear how the government got wind of his alleged offer, but authorities began monitoring his communications, the officials said. It does not appear he transmitted any information to al-Qaida, the officials said.

* * *
Anderson is a tank crew member from the National Guard's 81st Armor Brigade, a 4,200-member unit set to depart for Iraq. It is the biggest deployment for the Washington Army National Guard since World War II.

Washington State University spokeswoman Charleen Taylor said Anderson was a 2002 graduate with a degree in history. Anderson graduated from high school in Everett in 1995, the Herald of Everett reported, and at WSU studied military history with an emphasis on the Middle East.
Analysis: I'm not going to rush to judgment here, the way I did about the cases of the men charged with various security violations at Guantanamo Bay. (See this column for Findlaw and CNN.Com) I'm skeptical of what an M1 crewman would know that was valuable enough to pass to Al Qaeda. It's possible that he passed information about the M1's vulnerabilities or unit SOPs, but most of that stuff is in the public domain anyway. (I should note that the value of such information is only relevant if the Army decides to pursue the capital version of an aiding the enemy charge, but speculation about that is premature at this point.) Second, I am chastened by the government's conduct in the Gitmo cases, where it appears to have overshot with its initial charges. This time around, I'm willing to give a soldier the benefit of the doubt before I see any real evidence of his guilt. If these charges are true, they are very serious. But until proven otherwise, SPC Anderson is innocent in my book.

Update: CNN passes on some more details from unidentified DoD sources that seems to corroborate my theory of what information SPC Anderson was trying to pass:
Anderson allegedly offered to pass the information to al Qaeda agents through an Internet chat room, Pentagon officials said. But it is not believed he actually made contact with al Qaeda members, the sources said.

Law enforcement personnel were monitoring the chat room looking for people who might try to give up information, and Anderson allegedly tried to offer information to al Qaeda, according to sources.

Officials said Anderson, a tank crewman with the 303rd Armor Battalion of the 81st Armor Brigade at Fort Lewis, near Tacoma, was the only target of the sting.

The sting operation involved passing sensitive information about capabilities and vulnerabilities of armored Humvees and tanks, both of which are used in the brigade, officials said.
Stay tuned for more information -- I'll try to stay on top of this case.
Taking care of reservists

The Pentagon announced today the extention of several important health insurance provisions that help to provide medical and dental care for reservists and their families. The programs had been set to expire, but they will now continue until at least Dec. 31, 2004.
"These new temporary provisions were designed by Congress to improve readiness and enhance access to care for Reserve servicemembers and their families," said Dr. William Winkenwerder Jr., assistant secretary of defense for health affairs. "We are implementing these new provisions as soon as possible," he said.

One provision temporarily authorizes Tricare medical and dental coverage for Reserve component sponsors activated for more than 30 days and their family members. Eligibility begins either on the day the sponsor receives delayed-effective date active duty orders or 90 days prior to the date the active duty period begins, whichever is later.

A second provision temporarily extends eligibility for Tricare benefits to 180 days under the Transitional Assistance Management Program for Reserve component sponsors who separate from active duty status during the period Nov. 6, 2003 through Dec. 31, 2004, and their eligible family members.

The third provision temporarily extends Tricare medical benefits to Reserve component sponsors and family members who are either unemployed or employed but not eligible for employer-provided health coverage.
Analysis: You'd think these kinds of things would be a no-brainer in Washington; supporting medical care for reservists is like supporting balanced lunches for schoolchildren. Amazingly, this legislation was not that easy to get through Congress, partly because of the largess already in the DoD budget and partly because of institutional reticence to give these kinds of benefits to reservists. But with more than 200,000 reservists on active duty today, that more to follow in the coming months, it only makes sense for the Pentagon to take care of its reservists. They are, after all, the men and women who pick up the slack and fill in the gaps for the stretched-too-thin active force. And if you don't take of their health care needs, they won't be ready when the call comes to mobilize.
Law & Terrorism Research Resource of Note:
Jenner & Block has set up a pair of online repositories for the documents connected to Al-Odah v. United States and Padilla v. Rumsfeld, a pair of cases which deal with the Guantanamo Bay detentions and enemy combatant detentions respectively. (Thanks to Howard Bashman for pointing this site out.) The Al-Odah site has a great deal of material, including a number of interesting amicus briefs in the case. The Padilla site has less stuff now, but I imagine this will grow if the Supreme Court grants cert in this case (which my Court watcher friends tell me is likely).

Query: Where's the Hamdi v. Rumsfeld webpage? His case is before the Supreme Court, unlike Padilla v. Rumsfeld, and the briefs and decisions in this case from the 4th Circuit were really interesting.

Coda: Also check out Findlaw.Com's resources in this area. They have sections of their document archive devoted to Hamdi, Padilla, Al-Odah, and lots of other cases.
Book recommendation
: In the Company of Soldiers : A Chronicle of Combat, by Rick Atkinson

I've been looking forward to this book for a while; Glenn Reynolds lets us know that early copies have begun to ship. Rick Atkinson is perhaps one of the best war journalists in the business. His reporting from the front lines as an embedded reporter with the 101st Airborne Division was superb, particularly when combined with the big picture reporting of Vernon Loeb and Tom Ricks in Washington. (Update: I just learned that Vernon Loeb is moving to L.A. to take an investigative position with the Los Angeles Times.) I am reading An Army At Dawn right now, which is Atkinson's brilliant book on America's first experiences with land warfare in the North African theater of WWII. Last year, I had the opportunity to read Crusade, Atkinson's book on Gulf War I which is regarded as one of the definitive histories of that conflict.

In the Company of Soldiers has a few tough acts to follow. But if his war reporting from last year is any indicator of this book's quality, I think this latest work will be well worth the money.
New plan to curb the spread of nuclear weapons

The Washington Post reports this morning on a new push by President Bush to strengthen the global arms control regime with respect to fissile material and nuclear-weapons technology, among other things. The effort announced yesterday is mostly a diplomatic/legal effort, and will entail several major changes to existing documents of international and domestic law.
Bush, in a speech at the National Defense University, proposed revoking the long-standing bargain in the 1970 Non-Proliferation Treaty that allows countries to develop peaceful atomic energy in return for a verifiable pledge not to build nuclear weapons. Calling that agreement a "loophole" exploited by North Korea and Iran, Bush instead proposed that nuclear fuel be provided only to countries that renounce nuclear enrichment and reprocessing.

"This step will prevent new states from developing the means to produce fissile material for nuclear bombs," Bush said. "Proliferators must not be allowed to cynically manipulate the NPT to acquire the material and infrastructure necessary for manufacturing illegal weapons."

The president also proposed an expansion, to countries such as Iraq and Libya, of the Nunn-Lugar legislation, which finds alternative employment for former Soviet scientists, while weapons programs are dismantled. "The nations of the world must do all we can to secure and eliminate nuclear and chemical and biological and radiological materials," he said.

The speech marked an opportunity for Bush to demonstrate his credentials on nuclear proliferation in response to criticism that he has mismanaged the rising problem. In his remarks, Bush sought to capitalize on recent successes -- such as persuading Libya to renounce its weapons program and cracking a nuclear smuggling operation in Pakistan -- as catalysts for mobilizing a new international effort.

Some diplomats welcome Bush's engagement and some of his ideas but voiced skepticism that all the ideas would be embraced, in part because nonnuclear nations have little to gain by cooperating with the tightened restrictions. Arms-control experts also said Bush's proposal will face a hostile reception internationally because it seeks to crack down on rogue nations while requiring little of U.S. allies.

* * *
Democrats said they supported Bush's ideas but were doubtful of his willingness to achieve them. "Nothing the president proposed today will be successful unless the administration reverses course and undertakes serious and sustained cooperation in law enforcement, intelligence gathering, and diplomacy to halt nuclear proliferation," said Sen. John F. Kerry (Mass.), the leading Democratic candidate for president. "Despite today's rhetoric, the Bush administration continues to underfund our Nunn-Lugar efforts [and] has stood on the sidelines while North Korea developed an advanced nuclear capacity."
Analysis: As a matter of fact, these non-proliferation regimes are working quite well right now, notwithstanding the popular image of a rogue state with a bomb. The Nunn-Lugar Act and the cooperative threat reduction program it authorizes has been very successful in curbing the movement of fissile material out of the former Soviet Union; it has also helped to secure the technology and knowledge of the former-Soviet nuclear community. I agree that it has been severely underfunded in recent years, and that American would make a better investment if it took some money from missile defense and put it into CTR (as Fred Kaplan and others suggest).

But the real issue here is not the efficacy of these programs. It's whether the U.S. can embark on a major diplomatic and legal initiative in the wake of Operation Iraqi Freedom, and the diplomatic actions it took in the course of this conflict. To say bridges were burned would be to put it mildly. My read of the European media is that the Europeans simply don't think America wants to follow the rule of law anymore when it comes to international relations. Regardless of legal technicalities with respect to UNSC Resolution 1441 and the post-Gulf War I resolutions, the perception is that America disdains international law. (See also the international discussion of our actions at Guantanamo Bay, and the tenor of world criticism towards America in that context) If the world doesn't think that we take international law seriously, how well is the world going to receive a major American international law initiative?

Answer: it depends. The U.S. may actually have a great deal of credibility with Third World nations right now as a result of Operation Iraqi Freedom. I've previously called this the "smackdown effect" of the war in Iraq, and suffice to say, other nations are scared of what the U.S. might do. A nation looking at U.S. military superiority might look very kindly at an expansion of international law in this area. Libya certainly was, although it's likely that negotiations were going on there before OIF. Similarly, Russia will likely be very receptive to these moves, especially if it means more money through Nunn-Lugar and any help combatting terrorists in Chechnya and elsewhere. As for other nations like North Korea, India and Pakistan... we'll have to see what happens. This stuff is really important, so I hope it works.

Wednesday, February 11, 2004

Squadrons -- like the bar where everyone knows your name

The Associated Press did some yeoman's work by tracking down several members of the Montgomery (AL) based 187th Tactical Reconnaissance Group, which President Bush said he drilled with during the summer of 1972. Squadrons are the building block of the Air Force, much as battalions are the building block of the Army. It's the level of organization where Air Force pilots and airmen feel they're part of the same unit. And yet, no one in the unit seems to remember then-Lieutenant Bush.
The Associated Press contacted more than a dozen people who were members of the Montgomery-based 187th Tactical Reconnaissance Group in 1972. All were quick to point out that the unit had as many as 800 members and Bush was not yet famous.

* * *
"I don't remember seeing him. That does not mean he was not here," said Wayne Rambo, who was a first lieutenant with the 187th. "I don't want to cast any aspersions or to say he was or was not there."

* * *
Norman Rahn was a major with the 187th Supply Squadron in 1972-73 who had responsibility for out-of-state guardsmen training with his units. He said he does not remember Bush. But he seriously doubts whether anyone would remember Bush or any other transient pilot who spent a total of six days to 10 days on base in a three-month period.

"He was not a member of our unit," Rahn said. "We didn't own him."
In fact, only one person outside the White House has stepped forward to vouch for the President's service in Alabama. (Note: An officer has stepped forward to vouch for the President's service in Texas, and he has a letter in today's Washington Times about it. But I'm a little suspicious, because the letter's written a high level of generality. He doesn't even offer one anecdote of the Preisdent's exploits in the Guard. You'd think given the President's past proclivity towards having a good time, and the fact that he was a fighter pilot, and the general inclination of military pilots to have a good time, there'd be at least one colorful anecdote to share... it kind of makes you go hmmmm.)
Emily Marks Curtis, who dated Bush during the time he spent in Montgomery working on Blount's campaign, told the AP she cannot remember seeing him in uniform or going to Guard duty while he was in Alabama.

But she said: "He called me after he had left Montgomery to say he was coming back to do his Guard duty. It was either late November or early December (of 1972)."
Analysis: I'm about to finish an article on why I think this stuff is relevant today, 30 years after the fact. But for now, I'll opine on the fishiness of the situation. Squadrons are like battalions, and people tend to know each other in them. This is especially true for the officers in a squadron, which form more of a tight-knit and insular group within the organization; and it's even more true of the pilots who are officers. Although then-Lieutenant Bush was just on temporary duty, he was an officer who wore flight wings, and it's a little hard to believe that he wasn't noticed. After all, he was out of the ordinary as a TX officer in an AL Guard unit. And there aren't that many officers in a squadron that he would get lost in the crowd. The only plausible explanation, if he did actually show up, was that he was so lackluster and quiet that no one noticed him. Not exactly exemplary service for the guy that we now look to for leadership as Commander-in-Chief, but maybe he's a late bloomer. More to follow...
Pentagon gives alleged 'dirty bomber' access to counsel

Lots of big news stories today, and I'm too busy with an article to write on them. But one news story falls squarely in my lane of law & terrorism -- the Pentagon's announcement that it would provide Jose Padilla with access to an attorney. Defense Department and Justice Department lawyers have waged a scorced-earth legal campaign against any sort of court order forcing them to provide "enemy combatants" with access to an attorney. Now, as a matter of military discretion and policy (read: Padilla has outlived his usefulness to interrogators), the Pentagon has changed its mind.
DoD is allowing Padilla access to counsel as a matter of discretion and military authority. Such access is not required by domestic or international law and should not be treated as a precedent. A similar decision to allow Yaser Esam Hamdi access to a lawyer was announced Dec. 2, 2003.

DoD has determined that such access will not compromise the national security of the United States, and DoD has determined that such access will not interfere with intelligence collection from Padilla, who is a U.S. citizen.

As a U.S. citizen, Padilla is not eligible for trial by military commission under the president's military order of Nov. 13, 2001. Detention as an enemy combatant is not criminal in nature but is permitted under the law of war to prevent an enemy combatant from continuing to fight against the United States. Under the law of war, enemy combatants may be detained until the end of hostilities.

DoD policy permits access to counsel by an enemy combatant who is a U.S. citizen and who is detained by DoD in the United States: (1) after DoD has determined that such access will not compromise the national security of the United States; and (2) after DoD has completed intelligence collection from that enemy combatant or after DoD has determined that such access will not interfere with intelligence collection from that enemy combatant.
Analysis: I'll have more on this decision's implications later. But for now, I want to focus on the two-part test articulated by DOD in the last paragraph. Here are two questions that I will probably ask my class to consider as we evaluate this test:
1. Does this DOD framework provide a Constitutional way to limit the access to counsel? In other words, is it legal? The right to counsel is a strong part of the Supreme Court's 5th and 6th Amendment jurisprudence, and it's not immediately clear whether the Pentagon can limit this right at all, let alone in such a Draconian way. According to the U.S. District Court in Manhattan and the 2nd Circuit Court of Appeals, it can't.

2. Is this a reasonable way to define the access to counsel? In other words, is this the best course of action according to political, policy, operational, and other criteria that matter in the real world (as opposed to the world of lawyers)? Even if this policy is legal, it may not necessarily be the correct course of action. It also may not be the right course of action, in a moral sense. There's a big gray area here, which is made more gray by the fact that intelligence gathering and interrogation operations are necessarily hidden from public view, and therefore there is little knowledge out there about the details of such operations.
I tend to think the answers to both questions are "yes", largely because I think that some amount of isolation is necessary for the conduct of effecitve interrogations. I also tend to think that such isolation is Constitutional in the context of wartime, where there is a legitimate (maybe even compelling) state interest in the interrogation of enemy combatants. Moreover, I think the courts will be willing to defer to the executive branch on this issue, so far as there is some mechanism for reviewing these determinations and some finite-ness to this isolation. More to follow...

Tuesday, February 10, 2004

Update on President Bush's Military Records

Fox News, of all sources, has the documents released by the White House on their website, complete with cover pages which describe the contents of these documents. I'm not sure yet what these pages say because they're mostly printouts from the DFAS computer system, which means they have to be translated first into military jargon, and then into plain English.

Also, the White House has the transcript of today's press briefing available on its website, along with audio and video links for the briefing.

Kevin Drum's CalPundit also has comprehensive coverage (see here, here and here) on this subject, including links to major media, official sources, and other weblogs.

Finally, if you want to hear my thoughts on this issue and a few others, you can listen to my interviewwith David Weintraub of WCTC radio in New Jersey from Sunday evening. (Right-click and download this MP3 file to listen.)

More to follow...
Intel Dump gets results

White House releases military pay records to document National Guard service

The AP reports this morning that the White House plans to release pay records and retirement records to document the President's service in the Texas Air National Guard, and specifically, his temporary duty in the Alabama Air National Guard during the summer of 1972. Such records, as I indicated in a note last week that was picked up by major print, Internet and broadcast media, will prove conclusively whether the President attended National Guard drill during the period in question. Until now, it had been thought that these records were missing, but it appears that they may have been resurrected in response to these inquiries.
The material, to be released Tuesday, was to include pay records and annual retirement point summaries to show that Bush served.

"These records clearly document that the president fulfilled his duty," White House press secretary Scott McClellan said.

The point summaries were released during the 2000 presidential campaign but the pay records were not obtained by the White House until late Monday from the Air Reserve Personnel Center in Denver, Colo., McClellan said. He said the center, apparently acting on its own, reviewed Bush's records and came up with the pay information.

"It was our impression from the Texas Air National Guard — they stated they didn't have them," he said. "It was also our impression those records didn't exist." Bush on Sunday authorized the release of his Guard records. McClellan said the latest material apparently is all of Bush's records.

The pay information documented the dates when Bush showed up for Guard duty, the spokesman said. "You are paid for the dates you served," McClellan added.
Analysis: My first reaction is to be impressed by the existence of these records. These events happened 30 years ago, and it seemed plausible to me that these paper records would have been destroyed by now. Or at least, it seemed possible. But now it appears that the records do exist, and that they will be released by the White House. However, until I see the records and analyze them for what they prove or disprove, I will withhold judgment.

More to follow...

Update I: CNN reports that the records have been released, but I still can't find a copy. But CNN also reports on an interesting admission from White House Press Secretary Scott McClellan today that may place the value of these records in considerable doubt:
But under questioning from reporters, McClellan said the records do not specifically show that Bush reported for Guard duty in Alabama, where he spent much of 1972 working on a Senate campaign. And he said the White House has been unable to locate anyone who remembers serving with Bush during that period.

However, McClellan said, "he was paid for the days he served in the Air National Guard. That's why I said that these records clearly document that the president fulfilled his duties."

* * *
The White House also released previously seen records of Bush's "point summaries" from the Texas Air National Guard. And White House officials released a letter from former Texas Air National Guard Personnel Director Albert Lloyd, stating the president had the required number of "points" for the year in question.

Update II: The Washington Post has a good report on the subject too.

Monday, February 9, 2004

News for the men and women we send into harm's way

Cuts to Early Bird and Stars & Stripes will lead to a less-informed military

The Washington Post reports this morning on policy changes instituted by the Pentagon that have drastically cut the material which appears in the daily "Early Bird". This is the self-described "concise compilation of the most current published news articles and commentary concerning the most significant defense and defense-related national security issues." (In other words, it's a real Intel Dump.) But seriously, the Early Bird is the one-stop shop for news in the military -- where commanders and soldiers go for information about their mission and their world wherever they're at. It sits on a .mil server, so it's accessible via military networks that are blocked from the outside Internet, and it's often printed in paper form for distribution to lower level units that don't have Internet access. Here's what WP media critic Howie Kurtz reports:
Senior Pentagon managers have repeatedly ordered the department's widely read clipping service to exclude articles critical of the military and Defense Secretary Donald Rumsfeld, according to officials familiar with the practice.

Staffers at the Early Bird, whose service is devoured by Pentagon brass, lawmakers, journalists and military personnel around the world, were told to eliminate all newsmagazine articles last October -- four days after the publication of a Newsweek cover story on Iraq that included "Rummy's New Headaches" and a Time piece titled "Is Rumsfeld Losing His Mojo?"

"It comes down to the fact that they don't like these magazine articles," said a Pentagon official who declined to be identified and believes the Early Bird should not "censor" what is reported by major news organizations. The argument made against the offending articles, the official said, is that they are dated or inaccurate.

But the Pentagon press office, which oversees the Early Bird, has waived the magazine ban for some articles that senior managers deem positive. These have included the Time package on the American soldier as Person of the Year (which included a Rumsfeld interview) and two U.S. News & World Report pieces last week -- one on civilian efforts in Iraq and an officer's column defending the ban on coverage of deceased soldiers arriving at Dover Air Force Base.

* * *
Although the compilation is posted at 5:15 a.m. weekdays on the Pentagon's Web site, where space is not an issue, officials say they want to limit the printouts -- one of which is waiting in Rumsfeld's car each morning -- to no more than 40 pages. Excluded articles are often used in a massive, little-read supplemental report.

"If they're going to choose things that only shed a positive light, that's implementing a kind of double standard," says U.S. News Editor Brian Duffy. "I find it very odd."

"Early Bird is really important," says Time defense correspondent Mark Thompson, who has complained about the practice, "because it goes to all of our important sources, and they read it."
Also today, we learn from an article in the Pacific Stars & Stripes that severe cuts are being planned for Stars & Stripes' news operations around the world, including news gathering operations in Iraq where America has 125,000+ soldiers deployed right now. The operational tempo of the Global War on Terrorism has stretched the Stars & Stripes budget, and the Pentagon has been unwilling to provide additional funding for the primary newspaper serving American troops and families overseas.
Staffers are studying how to consolidate the paper's four weekly magazines into a single Sunday magazine of up to 32 pages, Kelsch said. The most popular features from each magazine will be merged into one product, he said. Currently, Stripes publishes Accent on Tuesday, Pulse on Wednesday, Travel on Thursday and Sunday magazine on Sunday. It also publishes a TV guide in the Pacific on Sunday, and a sports magazine, Time Out, about nine times a year.

Other cost-cutting measures being studied include: limiting publication to six days a week, closing the Stripes printing plant in Germany and contracting out the printing of the newspaper in Europe.
* * *
[Publisher Thomas] Kelsch said several factors contributed to the paper's financial woes:

- The decline of the dollar. A stronger euro is costing the paper "seven figures" this year, Kelsch said. Exchange rates have not fluctuated as much in Japan and South Korea.

- Conflict in the Middle East. The newspaper has received federal money for contingency operations, but it still has had to divert other resources to send staffers to the Middle East and distribute papers there.

- A falling circulation. With Europe-based units deployed to the Middle East, circulation in that theater has dropped. In the Pacific, circulation has been relatively stable since 2001, and grew slightly in 2003. Robb Grindstaff, general manager/Pacific, added that Pacific advertising revenues also have grown considerably for the past three years.
And there's more!!! A friend in Washington passes along this e-mail from an acquaintance who's an employee inside Stars & Stripes. It appears that there's more to the pressure on the newspaper than the simple pressure to balance the Pentagon's budget (and since when has that been a pressing need anyway?). Among other things, the Pentagon is less than thrilled with the paper's coverage of the war in Iraq, particularly issues of soldier morale where the Stripes staff has really done a great job. Take a look --
. . .
It's important to understand how Stripes operates to appreciate this. Our budget is $30 million a year. The Pentagon gives us $11 million. (This is absurd. We cover the Pentagon. Why doesn't Congress give us some money instead? Probably because the Pentagon prefers to have that power over us and be able to yank our chain when it feels like it.)

Beyond this, we're told to operate self-sufficiently to the greatest extent we can. Again, this is ridiculous. We don't have huge car dealerships and department stores and malls to advertise with us. We can't possibly function as a real newspaper from a business standpoint. We exist as a service to the troops, particularly in wartime. Yet we're told to operate this way.

So we're behind the eight ball from the get-go. Then Iraq comes along. There's a war. There are 130,000 troops in Iraq. We send reporters there. We expand the newshole. It costs money -- a lot of money beyond Stripes' normal operating costs. Congress gives the Pentagon $87 billion to fight the war, because fighting a war in Iraq costs money -- a lot of money beyond the Pentagon's normal operating costs. Yet the Pentagon tells us to forget it and forces us to SELL OUR PRESS to have money to continue to cover the war and be a newspaper.

And this comes just a few months after our survey of the troops got front page play in the Washington Post and was a huge embarrassment to the Pentagon.

So the Pentagon is basically telling us that the reason Stars and Stripes exists -- to provide a real newspaper to troops during wartime -- is just too gosh darned expensive to fund. And we're talking about just a few million dollars here, piss in a pot for the Pentagon's bloated budgets. It's not about money. It's totally political. It's about trying to kill Stars and Stripes.
Analysis: So, let's review the facts. We have a somewhat intentional effort by the Office of Secretary of Defense to reduce the amount of news going to soldiers in the field, partially on what lawyers might call "content-based" criteria. The Early Bird constitutes the primary source of real-time news for military officers and higher-level commands around the the world. Next, we have fiscal pressure on Stars & Stripes, the primary news source for soldiers, officers, and their families stationed overseas. The net effect of both of these efforts is to reduce the amount of news being conveyed to our men and women in the military, at a time when we are asking them to go into harm's way. Maybe I'm overstating the case here, but I think that's a real problem when you have an all-volunteer force of citizens who you're asking to put their lives on the line.

Sunday, February 8, 2004

Lessons Learned in Iraq

Tom Ricks has an interesting report on the front page of Sunday's Washington Post on the lessons learned by Army officers and NCOs in Iraq. These reports are now being collected, analyzed and disseminated in earnest to help prepare the second rotation of troops for Operation Iraqi Freedom -- troops without direct experience fighting Iraqi insurgents, IEDs, and other threats.
As one of the biggest troop rotations in U.S. history gets underway in Iraq, with almost 250,000 soldiers coming or going, the seasoned units that are leaving are doing their best to pass on such hard-won knowledge to their successors, in e-mails, in essays, in PowerPoint presentations and rambling memoirs posted on Web sites or sent to rear detachments. And in the process, these veterans of Iraq have provided an alternate history of the Army's experience there over the past nine months -- one that is far more personal than the images offered by the media and often grimmer than the official accounts of steady progress.

Taken together, these documents tell a story of an unexpectedly hard small war that has been punctuated by casualties that haunt the writers. At the same time, they show how a well-trained, professional force adjusted last year to the first sustained ground combat faced by U.S. troops in three decades, relearning timeless lessons of warfare and figuring out new ones.

"We had to learn the hard way," Capt. Daniel Morgan, an infantry company commander in the 101st Airborne Division, writes in an essay that is rocketing around military e-mail circles.

Like most of the 28 documents reviewed for this article, Morgan's is relentlessly specific. One of the most striking lessons the 1992 graduate of Georgetown University passes on: Every soldier in the unit should carry a tourniquet sufficiently long to cut off the gush of blood from major leg wounds. "Trust me," he writes, "it saved four of my soldiers' lives."

Morgan also emphasizes to incoming soldiers that they need to be ready to kill quickly yet precisely. "If an enemy opens fire with an AK-47 aimlessly, which most of these people do, you should be able to calmly place the red dot reticule of your M-68 optic device on his chest and kill him with one shot," he admonishes. "If you do this, the rest will run and probably not come back."

* * *
Five subjects dominate the new veterans' discussions: the nature of the foe, the need to adjust tactics and equipment, the ways to keep troops sharp and, again and again, how to run a safe convoy. And then, less as a lesson than as a warning, there is the impact of casualties.

Saturday, February 7, 2004

Check out IRAQ NOW ...... Media Analysis with a Sense of Insurgency
, a weblog by a U.S. Army officer currently deployed to Iraq as an executive officer for a company under the operational control of the 82nd Airborne Division.
The art of intelligence work

Austin Bay, another former military officer whose regular columns illuminate the world of military and intelligence affairs, has a great column in Friday's Washington Times on the art of intelligence work. I've never been a spook, but I've used their products, and sometimes thought of the same metaphor for the way that intel officers connect the dots that seemingly have no connection.
Now, everyone is an art critic. Better a million new art critics than a dozen suddenly frantic mass-casualty morticians.

The art under renewed critique is intelligence assessments, this round of criticism spurred by failure to find large stocks of chemical, biological and nuclear weapons material in Iraq.

Intelligence is indeed an art — a grand, interpretive collusion of linguistics, geography, mathematics, history, theology, psychology, physics, metaphysics and every other human means of analysis and explanation. I should include gossip. Gossip is another word for what intelligence agencies call "chatter." Like other forms of nasty gossip, chatter has effects. Al Qaeda's "chatter," whether overheard on street corners in Pakistan or decrypted from a curious e-mail, has canceled trans-Atlantic flights.

But another word on art: There's a Jackson Pollock painting titled "Lucifer." When I worked one summer for the now-defunct Houston Post, I used to walk past a poster of Pollock's "Satan," an "abstract" of slashes, swirls, black scratches of color, each stroke individually perplexing. Over the summer, passing the poster daily, I saw Pollock's vision of evil emerge. The splatter became coherent, a unified vision organized by a gifted talent.

New eyes may see nothing but wild paint, though Pollock's title is a clue something emotionally cold and dangerous lurks in the arrangement of color. But if you don't detect it, no big sweat. It's merely framed canvas.

However, in the art of intelligence analysis, the world is the canvas — a canvas inevitably frustrating the most astute frame of reference. What you don't see on that complex globe, and sometimes what you do see but don't understand, may get millions of human beings slaughtered.
Analysis: While I don't think this perspective necessarily dismisses American pre-war intelligence questions, I do think it's important to understand the process before one criticizes it. Intelligence is not an exact science -- it's much more of an art, informed by scientific things like signals intelligence and satellite reconnaissance. The fact that it is an art makes it all the more important for it to be done professionally -- without ideological biases or predispositions. I'm sure this is something that the new presidential commission will look at when they analyze America's pre-war intelligence, and the gaps between what we thought we knew then, and what we think we know now.
A bona fide war hero

There is an common story in American war stories about the brave combat medic who selflessly dashes to wounded soldiers under fire to give them lifesaving aid, or to ease their suffering in their final moments. This story has more than a grain of truth; many of those awarded the Congressional Medal of Honor (often posthumously) have been combat medics, and many more have served with less public recognition but no less valor.

Now comes the story of Army Pvt. Dwayne Turner, a combat medic in the 101st Airborne Division whose exploits under fire in Iraq earned him the Silver Star for gallantry in action.
"I didn't figure myself a hero. I just wanted to make sure everybody came home," Turner said after the medal and 101st Airborne coin were presented to him. "Nobody was going to die on my watch."

Before the firefight in a suburb about 30 miles south of Baghdad, the Iraqis near the U.S. convoy were being friendly as usual, Turner said. But the scene quickly turned violent, and the soldiers were attacked with grenade and small-arms fire.

Responding on instinct, Turner went into action and repeatedly exposed himself to enemy fire as he treated wounded soldiers. He was struck by AK-47 bullets in the arm and leg and was hit by shrapnel.

"When we got hit, guys were going down, and I was the medical guy on the scene. It was a split-second decision," he said.

During the 25-minute attack, Turner tended to the wounded until he finally had to be stopped. He was about to pass out from blood loss, said platoon leader Sgt. Neil Mulvany, who treated Turner's injuries.

"He risked his life to save 16 other soldiers," Mulvany said. "That's a hero in my book."
My book too.
Inquiry ordered into sexual assaults in the military

The Washington Post reports this morning on a probe ordered by Defense Secretary Donald Rumsfeld into approximately 88 incidents of sexual assault among American forces in Iraq and Kuwait. Tragically, this number includes many cases where a U.S. male soldier is alleged to have attacked a U.S. female soldier -- a violation of the sacred trust that binds units in combat. There also appear to be a large number of "fraternization" cases, where sexual activity is deemed misconduct because it crosses unit or rank lines.
"Commanders at every level have a duty to take appropriate steps to prevent sexual assaults, protect victims, and hold those who commit offenses accountable," Rumsfeld said in a memorandum to David S.C. Chu, undersecretary of defense for personnel and readiness.

In the memo, released by defense officials, Rumsfeld directed Chu to report back within 90 days on how the Defense Department handles reports of sexual assaults in the combat theater and whether adequate treatment and care are being provided.

Rumsfeld also directed Chu to determine whether private channels for reporting sexual assaults have been established by units in Kuwait and Iraq.

"We are responsible for ensuring that the victims of sexual assault are properly treated, their medical and psychological needs are properly met, our policies and programs are effective, and we are prompt in dealing with all issues involved," Rumsfeld said.

A total of 88 cases of sexual misconduct have been reported by the military services over the past year in the Central Command area of operations, which includes Kuwait and Iraq. The Army has reported 80, the Air Force seven and the Marines one.

One senior officer who recently returned from the theater said most of those cases involved fraternization between male and female service members, not sexual assaults.
Analysis: By and large, I think the military does a good job of maintaining good order and discipline -- particularly on overseas deployments like those to the Balkans and Southwest Asia. However, there are breaches of that discipline from time to time, and it is incumbent on the command to respond appropriately. In the area of sexual misconduct, I believe strongly in a zero-tolerance policy, especially for anything that comes close to sexual assault. I am somewhat heartened to see the same approach endorsed by the senior levels of the Pentagon.

Also, I think the fraternization numbers may be somewhat misleading without some understanding of what these numbers mean. Fraternization is essentially sex between soldiers where there is a leader-subordinate relationship, or a difference in rank. It is roughly analogous to sexual harassment in the civilian world, although it's presumed in the military that a junior cannot consent to sexual activity with a senior because of the inherently coercive nature of military rank relationships. Actual consent between the soldiers may exist, but legal consent may not. Moreover, the military treats such relationships as unlawful because of the effect they have on discipline and unit cohesion, regardless of consent. It looks like these fraternization numbers are rolled up in the number of 88 assaults, and thus that number may be artificially high. I'm no fan of fraternization, but I'm also realistic that it will happen in units on a year-long deployment. When there's no actual issue of consent, I tend to think such issues should be dealt with by company- and battalion-level leaders as a unit matter.

But what worries me is that this number also includes a sizable number of sexual assaults -- something I find inexcusable. But I also think we are seeing something of a learning effect here. In the last three decades since the military integrated women into its all-volunteer force, it has steadily learned that:
a) incidents of sexual misconduct happen, unfortunately; and
b) they are prejudicial to good order and discipline; and
c) such incidents must be dealt with strictly and fairly; and
d) any attempt to cover up the incidents, or treat them as "boys being boys", will be viewed poorly by the public.
The most recent example of this was the sexual assault scandal at the U.S. Air Force Academy -- a fine institution, but one with flawed institutions for dealing with this kind of issue. It was bad enough that the assaults happened. But the Air Force didn't earn points for its handling of the problem -- which apparently, they knew about years before the matter broke in the press. Eventually, the SecDef appointed a blue ribbon commission (the "Fowler commission") to look into the matter, and it found a number of systemic issues at USAFA that facilitated the problems there. But the commission also found a pattern of neglect and dereliction by the most senior levels of the Air Force's civilian leadership.

In the instant case, I think we're seeing a departure from that style of management, and a change for the better. The current Pentagon's leadership clearly watched the USAFA scandal unfold and said to themselves "we're going to do better next time." Hopefully, the investigation into these assaults is able to find places for improvement, such that America's women in uniform can focus on the threat from the enemy -- not from their brethren.