Sunday, February 29, 2004

Lessons learned from America's last excursion to Haiti
: Amb. James Dobbins' recent book America's Role in Nation-Building: From Germany to Iraq has an entire chapter devoted to the 1994 intervention in Haiti, complete with a description of what happened and lessons learned. I'm sure the Marine Corps officers headed to Haiti right now have read this chapter, along with Max Boot's passages on Haiti in Savage Wars of Peace. It's a cliche to say that history repeats itself, but in this case, it may be true. It behooves us to study our history, so we can at least make new mistakes this time.

Amb. Dobbins also comments in this excellent article by Paul Richter of the LA Times on America's burden in Haiti. For better or worse, America has a special relationship with this troubled nation off our southern shore. Most experts on the subject agree that America cannot help Haiti with military force or nation-building alone. Making a difference in this country will take years of sustained economic aid and development assistance, as well as foreign direct investment and private industrial development. According to an officer I know who served there in the mid-1990s, the real problem in Haiti is not security -- it is poverty. Only a sustained development program, coupled with serious investment in Haitian infrastructure, will enable this country to stabilize itself in the long run, so that America doesn't have to intervene in Haiti for a seventh time.
UN authorizes force for Haiti

CNN reports that UN Security Council has authorized the deployment of a multi-national peacekeeping force to Haiti for the purposes of securing the country and facilitating humanitarian aid. The UN Security Council authorized an initial 3-month deployment, with the possibility of a follow-on deployment for longer if necessary.
Adopting a resolution under Chapter VII of the UN Charter, which allows for the use of military power, the Council mandated the operation to contribute to a secure and stable environment in the country, to facilitate the provision of relief aid to those in need, and to help the Haitian police and the Haitian Coast Guard maintain law and order and protect human rights.

The Council decided that the operation would be stationed in Haiti "for a period of not more than three months" while declaring its readiness to establish a follow-on UN stabilization force to support the continuation of a peaceful and constitutional political process and the maintenance of a secure and stable environment.

Secretary-General Kofi Annan was requested, in consultation with the Organization of American States (OAS), to make recommendations on the size, structure and mandate of the follow-on UN operation. He was also asked to elaborate a programme of action for the UN's political, humanitarian, human rights and development work in support of Haiti.

Member States were called on to urgently contribute personnel, equipment and other necessary financial and logistic resources to the Multinational Interim Force.

The Council demanded that all the parties to the conflict halt the violence, reiterating that "there will be individual accountability and no impunity for [human rights] violators." It further demanded respect for the constitutional succession and the political process under way to resolve the current crisis.
More to follow...

Update I: The Pentagon has a press release up describing the Haiti operation that's now underway, and circumscribing its scope to include just a few specific missions:
- Contributing to a more secure and stable environment in the Haitian capital to help promote the constitutional political process;

- Assisting as may be needed to facilitate the delivery of humanitarian assistance;

- Protecting U.S. citizens as may be required.

- Facilitating the repatriation of any Haitian migrants interdicted at sea;

- Helping create the conditions for the anticipated arrival of a U.N. multinational force.
That's not all -- the most interesting thing comes at the end of the release, which talks in vague details about the command structure for this force:
The United States, working with the United Nations, the Organization of American States and the Caribbean Community, is in contact with a number of countries that have expressed a willingness to contribute forces. The initial leadership of the multinational interim force will be the United States. The leadership of the final multinational force will be determined in the days ahead.
Very interesting... The fact that we are working through international institutions is somewhat heartening after our difficulties with the UN over Iraq. But the surprising thing is that we may be willing to cede leadership over this mission to another country -- or the UN. Generally speaking, the United States doesn't like to put its soldiers or diplomats under a foreign flag, or a UN flag, unless a US general is in charge. This may be an important concession, though, in securing a large deployment of foreign troops. And with U.S. soldiers and Marines strung out across the world, we have to have foreign help in order to make the Haiti operation work.

Update II: Donald Sensing adds some useful information about "non-combatant evacuation operations" -- NEO in military parlance -- and how they might unfold in Haiti.
Haiti boils over

The New York Times reports that Jean-Bertrand Aristede has resigned as President of Haiti and fled by private jet to the Dominican Republic. In his place, Chief Justice of the Supreme Court Boniface Alexandre has taken over as head of an interim government until elections in 2005. Rebels continue to surround the capital city, but at this time, they have not attacked. The U.S. and other nations stand ready to dispatch some kind of military force in order to stabilize Haiti and prevent a humanitarian crisis there. <Update: President Bush has ordered a MAGTF (Marine Air-Ground Task Force) from Camp LeJeune to be flown to Haiti immediately, with a limited mission to secure the ports and provide other security assistance as directed by the embassy.>
The Bush administration decided in the past three days, as a senior administration official said Saturday, that "Aristide must go," regardless of his constitutional authority. That message was communicated directly to Mr. Aristide hours before he left this morning. France, Haiti's colonial occupier, also called for the president to step down.

In a statement issued Saturday night and authorized by President Bush, the White House blamed Mr. Aristide for "the deep polarization and violent unrest that we are witnessing in Haiti today."

His departure enables a proposed international peacekeeping force to land in Port-au-Prince, secure the capital and enable desperately needed food and economic assistance to flow to Haiti, the poorest nation in the Western hemisphere.

The Associated Press quoted the United States ambassador to Haiti, James Foley, as saying, "International military forces including U.S. forces will be rapidly arriving in Haiti to begin to restore a sense of security."

That force would try to stabilize Haiti — a task that could take years — and prevent a fresh flood of desperate refugees trying to reach Florida.
Analysis: I opined earlier this week that the U.S. couldn't meaningfully intervene in Haiti even if it wanted to, because of our commitments elsewhere.
However, one has to wonder just what is on the table in the way of U.S. contingency plans for Iraq. This is not 1994 -- we can't load the XVIII Airborne Corps onto planes to back up any sort of diplomatic initiative in Haiti. At most, we could probably muster a MEU to send to Haiti on short notice, or perhaps a piece of a unit that's already redeployed from Iraq. But doing so would have tremendously difficult secondary and tertiary consequences for America's military that's already stretched to its breaking point. Our commitments to Iraq and Afghanistan now constrain our foreign policy to the point that we cannot consider the deployment of troops to a place like Haiti as a viable option -- there just ain't any more to give. Ironically, our commitment in Iraq may now force us to pursue an internationalist policy in Haiti, and to support the deployment of an international police force.
So, it appears that the contingency plan was to wait for Haiti to resolve its current leadership crisis and then to send some kind of peacekeeping force -- probably a MEU (Marine Expeditionary Unit). It won't be a very robust force, and it won't be able to patrol every part of Haiti or do everything we were able to do in 1994. But it'll have enough punch to at least make the interim government listen.

However, this may not be the appropriate force for this kind of situation. Several prominent thinkers have begun to argue for an expeditionary nation-building capability for the United States, and Haiti is a prime example of where you might send such a force. A MEU (or Army brigade) doesn't have the organic nation-building capabilities to do the job -- MPs, Civil Affairs, intelligence, logistics, medical, and plug-ins from State, USAID, NGOs, and CIA. It also has too much combat power relative to the job at hand, and not enough of the CS/CSS (combat support/combat service support) units needed for nation buildilng. Max Boot, author of Savage Wars of Peace and one of the leading thinkers of the 'neo-con' movement, wrote this in the LA Times this week:
Isn't it about time we got serious about dealing with failed states? If we did, we would have to devise both national and international remedies.

Nationally, the United States needs to create a standing agency devoted to nation-building; it should have a director with the authority to force disparate departments in the U.S. government to work together, something that didn't happen before the invasion of Iraq. The military too needs to devote more attention to nation-building, perhaps by adopting a proposal from the Pentagon's Office of Force Transformation to add a couple of divisions specially trained for peacekeeping.

* * *
Likewise, beefing up peacekeeping capacity is very much in our interest. That would enable us to avoid the dilemma we face today in Haiti: either do nothing and let violence explode or take on a burden — fixing things ourselves — that we're not prepared to shoulder. There has to be a better way. I hope we find it before the next disaster strikes.
I think he's right. America needs to create such a capability, either by standing up a separate agency and force for the job, or by building these capabilities into existing units. The current proposals on the table for "transformation" all speak of "full-spectrum operations" -- the ability to do everything on the spectrum from peace to war. But these plans don't put their money where their mouth is.

One last point to consider: even if we could intervene in Haiti with a meaningful force, would such an intervention be realistic? Or put another way, is there any sort of domestic authority in Haiti to work with, or do we have to build governments, infrastructure, social institutions, etc., from scratch? One member of the NSRT suggested in a discussion that we could not succeed in Haiti because of the lack of these things, and indeed, that we would squander what remaining U.S. military capability we have on a hopeless mission if we sent U.S. forces there. At least one expert quoted in the New York Times thinks roughly the same thing:
Robert Fatton Jr., a native of Haiti and chairman of the politics department at the University of Virginia, agreed.

"There are no functioning institutions in Haiti," he said. "Things could very easily unravel. I think we are in for a long crisis. You are going to have a hellish situation without an international peacekeeping force. The armed gangs could go wild. It looks to be a vacuum of power in the short term and that's very dangerous, if there is no center and the country cannot hold."
So, the appropriate analogy here is not to Haiti in 1994, but to Somalia in 1992, where U.S. forces has to work with a worthless de jure government and a de facto government of warlords and thugs. Haiti at least has an interim government, but that's not going to mean much if a) it can't control the rebel forces and b) can't control any sort of government apparatus in the rest of Haiti. There is no doubt that we are stepping into a cesspool. But since the mess is on our doorstep, we hardly have a choice.

Saturday, February 28, 2004

Inter Arma Silent Leges

In time of war, the law is silent -- or is it?

I just finished reading All The Laws But One, Justice William Rehnquist's history of American law in wartime. I've had this book on my shelf for some time, but I finally decided to read it for some background before I covered Quirin, Korematsu and the contemporary 'enemy combatant' cases with my Law & Terrorism class. Unfortunately, I found this book to be quite superficial and conclusory. It added little to the legal history that I have been able to glean from other sources, such as Lawrence Friedman's many books and the cases themselves.

Moreover, Justice Rehnquist's book obscures certain areas (e.g. the Lincoln Assasination trials) with too much detail and glosses over other important areas (like the WWII internments) with too little detail. He also devotes an inordinate amount of text to biographical detail about justices on the Supreme Court through history, ostensibly because those details reveal something about their character and jurisprudence. But in doing so, he downplays the legal reasoning and facts of these cases. Obviously, the sitting Chief Justice knows a lot about judicial decisionmaking, and maybe he thinks that these personalities are paramount. But it seemed odd to me, because I've learned in law school that facts and law have at least some bearing on the outcome of a case.

That said, this book did have some value. It provided me with a great deal of insight into the Chief Justice's views on law in wartime -- something which is quite relevant today, with cases before the Court relating to American detentions at Guantanamo Bay and detentions of U.S. citizens as enemy combatants. Here's what Justice Rehnquist had to say on page 205 (paperback edition) with respect to judicial deference to military authority in the context of Korematsu and the Japanese internment cases:
Several criticisms of the Court's opinions in these cases have been made. The most general is of its extremely deferential treatment of the government's argument that the curfew and relocation were necessitated by military considerations. Here one can only echo Justice Jackson's observation in his dissenting opinion that "in the very nature of things, military decisions are not susceptible of intelligent judicial appraisal." But it surely does not follow from this that a court must therefore invalidate measures based on military judgments. Eugene Rostow [former Dean of Yale Law School] suggests the possibility of a judicial inquiry into the entire question of military necessity, but this seems an extraordinarily dubious proposition. Judicial inquiry, with its restrictive rules of evidence, orientation towards resolution of factual disputes in individual cases, and long delays, is ill-suited to determine such an issue as "military necessity." The necessity for prompt action was cogently stated by the Court in its Hirabayashi opinion.
Although the results of the attack on Pearl Harbor were not fully disclosed until much later, it was known that the damage was extensive, and that the Japanese by their successes had gained a naval superiority over our forces in the Pacific which might enable them to seize Pearl Harbor, our largest naval base and the last stronghold of defense lying between Japan and the west coast. That reasonably prudent men charged with the responsibility of our national defense had ample ground for concluding that they must face the danger of invasion, take measures against it, and in making the choice of measures consider our internal situation, cannot be doubted. [320 U.S. at 94]
So... the Chief Justice thinks the Supreme Court did the right thing in deferring to executive/military authority in upholding President Roosevelt's Executive Order 9066, the Japanese internment order. And presumably, he would apply the same logic today, where the government has articulated a similar need to pro-actively defend citizens (albeit on the basis of individualized suspicion) whom it deems to be waging war against the United States as an agent of Al Qaeda.

After reading this book, I now see something about to happen in the Supreme Court this spring that I hadn't seen before. On the one hand, you have a movement within the law to overturn the precedents of Korematsu and Hirabayashi -- two stains on American jurisprudence that live on as "good law" (in a strictly precedential sense) to this day. Within the Court, I can count a few votes against the government in Hamdi and Padilla that partly rest on the desire to overturn these two decisions. On the other hand, I can also see a part of the Court (led by Justice Rehnquist) siding with the government's position in these cases, under the theory of judicial deference. Justice Rehnquist appears to have had no problem with such deference during WWII (when he served as a sergeant in the Army Air Corps). And the fight right now is not over the wisdom or efficacy of these policies -- it's over whether the President has the power to make them, and whether the courts have the power to review them. With the battle lines drawn that way, I think Justice Rehnquist's book makes it clear how he will come out.