Saturday, March 20, 2004

Gitmo produces results
: Neil Lewis has this report from Guantanamo Bay, Cuba, where American intelligence officers say they are collecting valuable, actionable intelligence from the detainees we have housed there. It appears from this story that the White House and Pentagon are trying to rebut fierce criticism of American policy at Gitmo by arguing that these detentions are producing results. I don't think this will necessarily sway the Supreme Court when it opines on Gitmo in Al-Odah v. United States, but it may help the administration score some points in the court of public opinion.
L.A.'s enigmatic law enforcer
: Saturday's LA Times has a really interesting story about L.A. County Sheriff Lee Baca and his recent visit to Pakistan. Within law enforcement circles, Sheriff Baca is widely respected, and his department has led the way in the anti-terrorism field with innovations like the L.A. County Terrorism Early Warning Group. Among other anecdotes, Times reporter Matt Lait shares this one, showing just how politically adept the sheriff can be:
Baca enjoyed the role of visiting dignitary. "Assalam alaikum," he said when introduced to people. Peace be with you.

Several times, Baca clasped his hands together and gave a slight bow, which in this country can be viewed as a Hindu greeting. But Muslims here did not appear to take offense.

He gave Pakistani greetings, a hug and kisses on the cheek, to officials, including Musharraf. In one meeting after another, Baca called the Pakistani president "a man of vision, a man of character, a man of history," ignoring the complex political cross-currents that dominate the country.

Baca gave out miniature sheriff's badges to nearly everybody who crossed his path. He made a small ceremony out of pinning them to the recipients' lapels. After a while, his hosts lined up to receive the gold miniatures.

"Is he running for office," asked one Pakistani, "in this country?"
It never hurts to make friends in the anti-terrorism community. Given the global networked nature of the threat, I imagine these contacts will pay off some day for Los Angeles County.

Friday, March 19, 2004

Army drops case against Gitmo chaplain
: CNN.Com is carrying a banner on the top of its page saying the Army has decided to drop all charges against Captain James Yee, the Muslim chaplain once accused of conducting espionage at Guantanamo Bay. More to follow...
Gitmo Blues
: Neal Katyal, a Georgetown law professor who has been working with military defense attorneys assigned to detainees at Guantanamo Bay, has an interesting essay up at Slate on the charges filed thus far under the rubric of the Pentagon's military tribunals. His conclusion is that the conspiracy charges alleged against these two men are ill-conceived.
Army's Cold War thinking impeded production of armored HMMWV

Greg Jaffe has a brilliant article on the front page of today's Wall Street Journal (subscription required) that reports on why it has taken the Army so long to develop, procure, produce and deploy its up-armored HMMWVs in Iraq. The article also does a great job of generalizing from this instance to make a larger argument about the Army's anachronistic thinking about weapons systems and the battles it would need to procure gear for in the 21st Century. Here's a short excerpt:
On the eve of the war in Iraq, just 2% of the Army's world-wide fleet of 110,000 Humvees were armored, and the Army was planning to cut back its purchases. As late as last May, the Army saw little need for the armored Humvee, saying it needed only 235 of them in Iraq. Only in October, with its soldiers under daily attack, did the Army decide it needed 3,100 armored Humvees. Today, the requirement stands at 4,500 and climbing -- a number the Army doesn't expect to hit in Iraq until late this summer or early fall.

The Army's failure to produce more of the vehicles, a hot topic among soldiers in Iraq, is slowly becoming an issue among lawmakers. A look at why the armored-Humvee program has struggled to gain acceptance shows flaws in the Army's vision over the past decade of how future wars would be fought. Even as the armored Humvee proved itself in small conflicts around the globe, the Army failed to buy more because it was focused on preparing for major wars with other large armies -- rather than low-end guerilla conflicts.

Moreover, in pursuit of big technological leaps that fundamentally alter the way wars are fought, the service also has tended to overlook simple, low-cost innovations that often count for much more on the battlefield. "Getting the Army to support the armored Humvee was like pushing a limp rope up a hill," says Jim Mills, a retired colonel who was a senior manager on the program for several years in the late 1990s.

Critics of the armored Humvee had pointed to its limitations: Unlike an Abrams tank, the vehicle can't repel a blast from a rocket-propelled grenade or .50 caliber machine-gun fire. Iraq, however, has shown that even a marginal technological advance can save lives. While the armored Humvee may not deflect a blast from a rocket-propelled grenade or roadside bomb, the solders in the vehicle are far more likely to emerge from the attack with their lives.

Prior to the Iraqi war, senior Army officials, looking to save money in the 2004 budget, drafted a plan that would have cut the number of armored Humvees the service planned to buy by 2,800 vehicles to a total of 1,000.

Now the Army, rushing to fix the imbalance, says it needs 11,000 of the vehicles world-wide. In addition, it is scrambling to produce about 8,400 add-on armor kits that can be bolted to existing Humvees with sheet-metal or fiberglass skin and canvas doors.
Analysis: If there is a good news story here, it is that the Army has learned (relearned?) the lessons of urban combat in Iraq and seen the utility of this vehicle. More importantly, it has jumpstarted production with emergency procurement orders for up-armored HMMWVs, and transferred almost every up-armored HMMWV in the world to forces in Iraq. The Army had a problem, and it responded the best it could with the resources it had in place. Some general officers probably deserve a pat on the back for making what is normally an inflexible Army supply/procurement system respond so quickly to this problem.

However, the larger problems of the system remain. In many ways, this problem could never be satisfactorily solved because the Army did not have the resources on the battlefield in order to move them to the right place and time. That problem owes to procurement decisions made much further upstream by the Army, in which it decided this was not a valuable system. As evidence of that, I submit these two passages from Mr. Jaffe's story:
Army officials insist that no one could have predicted that the service would have been involved in such a huge peacekeeping effort, which dwarfs previous missions to the Balkans, Haiti and Somalia. Nor could the Army have predicted Iraqi insurgents would use remote-detonated roadside bombs so effectively to kill U.S. soldiers, says Brig. Gen. Jeff Sorenson, a senior Army procurement official. "We didn't anticipate this threat nor were we prepared for it," the general says.
Really??? That's a planning failure of the most basic kind -- the failure to anticipate the threat. And I find it quite hard to believe, honestly, that the Army could fail to appreciate this kind of warfare after watching all of the brushfire conflicts of the 1990s. From Somalia to Chechnya, it was clear what kinds of wars we'd be fighting in the next century to anyone with a clue about history and the population trends that were moving towards urban centers. Moreover, as one of my NSRT colleagues points out, the Army recognized these trends and incorporated them into exercises at the Joint Readiness Training Center as early as 1993. Roadside IEDs were a known threat, and the Army trained for it -- it just didn't buy the gear it needed to have to meet this threat effectively.

A second passage from Mr. Jaffe's article is even more damning:
... The program's most enthusiastic backers were military police, who specialize in riot control, peacekeeping and stabilizing an area following combat.

But officials involved in the program worried that the Army might not embrace a peacekeeping vehicle. They were also concerned the relatively small military-police force, which boasts no three- or four-star generals, lacked "the horsepower to get the armored Humvee built," says John Weaver, an Army program manager who oversaw the service's Humvee fleet. So Mr. Weaver and his colleagues instead pitched the armored Humvee as a scout vehicle that would venture out in front of the tanks during big battles and beam back information about the enemy.

The armored Humvee proved terrible at that job. Early test vehicles were too heavy, and whenever they ventured off road in soft soil they got stuck in the mud. Senior officers in the Army's armor school, which trains and equips the service's heavy-tank force, wanted to kill the armored-Humvee program entirely.
It is true that early armored HMMWV prototypes had problems. They basically bolted armor onto an existing HMMWV and it was too much for the engine, chassis, suspension, and steering to bear. However, all prototypes have these problems, and the up-armored HMMWV certainly had less problems than the early Abrams and Bradley prototypes. (See the book Pentagon Wars -- or the Kelsey Grammar movie -- for some examples.)

The Armor community may have cited these problems in its decision, but the real issue was that it didn't want to procure equipment for anything less than high-intensity combat. You see, an admission of the value of equipment for low-intensity conflict and peacekeeping operations would diminish the value of armored forces, which are designed to fight high-intensity battles. The Armor community was even willing to do so at the expense of its scouts, who drive the exact same M1025 un-armored HMMWVs that MPs do. This Cold War high-intensity combat paradigm was so prevalent in the Army that the MP community -- the Army's center of excellence for peacekeeping ops -- could not sell this program to the Army in any sufficient numbers. Mr. Jaffe is right that the MP corps lacks a 3- or 4-star general. The path to advancement in the Army has never been through low-intensity conflict or peacekeeping operations; it has always been through the combat arms. Senior Army leaders today may see things differently, because many have Balkans experience (like retired Gen. Eric Shinseki, who predicted it would take "several hundred thousand" troops to secure Iraq). But in the mid-1990s, when this program was in the early stages, the Army still believed in its Cold War/Gulf War I paradigm.

The armored HMMWV problem isn't the only procurement problem to surface during Operation Iraqi Freedom. The other big one was the lack of Interceptor Body Armor -- newly designed body armor that was proven to save lives. Thousands of troops (including a disproportionate number of reservists) went into combat wearing Vietnam-era flak jackets capable of stopping some shrapnel, a level of protection far below what was available. Again, this traced back to procurement decisions made far upstream by military and civilian officials who decided they could afford a phased purchase of IBAs, rather than a one-time purchase, because they didn't see this kind of conflict on the horizon. Once again, that reflects a very big failure of the imagination. The military did prepare and procure for the kind of tech-heavy conflict it wanted to fight in the 21st Century; it bought JDAMs, it bought cruise missiles; it bought into R&D; on programs like the Future Combat System. What it did not do was buy equipment to fight the low-tech battles that many experts predicted would become the norm in the 21st Century. And the results are now becoming clear.

But wait -- there's more. Vehicles and body armor are just two equipment problems, and they're quite narrow. If you look at the Army's vehicle fleet generally, you will see that very few vehicles have any sort of armor or crew protection at all. The vast majority of Army HMMWVs and cargo trucks were designed to move in a permissive "rear area" environment, and thus they have nothing but fibreglass and canvas to protect their occupants. Similarly, if you look at the Modified Table of Organization and Equipment for most "rear area" units -- from maintenance companies to medical companies to signal companies -- you will see a noticeable lack of combat equipment. These support units lack crew-served weapons, night-vision goggles, GPS systems, and tactical radios. Simply put, they don't have the equipment necessary to protect themselves while they do their support mission.

I don't think we need to transform transportation companies into door kick-in'ers. But I do think we need to equip these support units with the gear they need to defend themselves in a convoy or logistical base. Until now, the Army's paradigm was that these units would fight on a linear battlefield and rely on front-line units to kill the bad guys before they could get back to hurt them. That paradigm looks nice on paper, but it's not the reality we're likely to face in future conflicts, as illustrated by recent experience in Iraq.

Thursday, March 18, 2004

On Scalia's Recusal Refusal

For a serious report on the issue, see this New York Times article by Steve Twomey, complete with a link to Justice Scalia's memo. For a more skeptical treatment of the issue, see Je Refuse! by Slate's Dahlia Lithwick. And finally, for a humorous (yet realistic) treatment, see last night's Top Ten list from David Letterman:
Top Ten Signs Your Supreme Court Justice Is On The Take

10. Begins every case with, "We'll start the bribing at ten thousand."

9. His written opinions always have several mentions of the thirst-quenching taste of Mountain Dew.

8. Regularly convenes court at the dog track.

7. Asks, "Does either attorney plan on inviting me on any hunting trips?"

6. For a Supreme Court Justice he certainly is mentioned on "The Sopranos" a lot.

5. All the bling bling.

4. His last article in the "Law Journal" was about finding the right fence for your stolen goods.

3. When you have a meeting with him in chambers, frisks you for a wire.

2. He's on the Forbes 500 List between Bill Gates and Oprah.

1. Already declared Bush the winner of the November election.
Bonus: For an example of a previous recusal refusal, see this memorandum of then-Assoc. Justice William Rehnquist from 1972 in Laird v. Tatum, in which the current Chief Justice refuses to recuse himself from a political surveillance case against the Secretary of Defense.
Government files brief on the merits in 'dirty bomber' case
: The Solicitor General's office filed its legal argument yesterday with the Supreme Court in the case of Padilla v. Rumsfeld. (Thanks to How Appealing for the tip.) Jose Padilla was initially arrested on a material witness warrant in May 2002, and later designated an enemy combatant by the President and transferred to military custody. Since June 2002, he has been held by the Department of Defense as an unlawful enemy combatant, subject to interrogation and seclusion from the outside world.

Clearly, Padilla's case raises Constitutional issues of epic proportion. The Supreme Court might ostensibly use his case to sharply limit the President's war powers under Art. II of the Constitution, or it might greatly expand those powers by reversing the 2nd Circuit's decision that President Bush lacked the authority to detain Padilla -- a U.S. citizen on U.S. soil -- as an enemy combatant. The Court will hear Padilla's case jointly with that of Yaser Hamdi, another U.S. citizen/enemy combatant whose capture and detention was blessed by the 4th Circuit Court of Appeals. The difference between the two cases boils down to geography: Padilla was captured in the U.S., not in an active combat zone; Hamdi was captured in Afghanistan, in what the 4th Circuit deemed an active combat zone. My sense of these cases is that the Supreme Court will try to split the baby between them, and draw some line on the basis of either the "active combat zone" issue or geography issue. We'll see.
Pakistanis may have Al Qaeda #2 surrounded
: CNN reports that Pakistani military units have encountered extremely heavy fighting from about 200 militants in the Pakistani mountains thought to be sheltering top leaders of Al Qaeda. The intensity of the fightinghas led some to believe that the Al Qaeda fighters are defending Ayman Zawahiri -- or possibly even Osama Bin Laden. First reports are always wrong, so I anxiously await some more credible information from this scene.

We've been here before. Remember the Tora Bora campaign in late 2001/early 2002, where American firepower was used to support indigenous forces on the ground? It has been argued by many that the failure to introduce American ground troops in that campaign facilitated the escape of several top Al Qaeda leaders, including possibly Bin Laden and Zawahiri. This time around, the U.S. has said publicly that it would not repeat that mistake -- that it will deploy company and battalion-sized units in order to capture or kill Al Qaeda's leadership. Keep your eye on the news for indications that the U.S. has committed troops to this operation.More to follow...

Update I: The Washington Post reports (near the bottom of its story) that the U.S. officially has no troops participating in this op. That statement may or may not be true; it may or may not include special operations forces and covert paramilitary (read: CIA) forces. Given the American interest in this op, I sincerely hope we have some involvement.
Another Gitmo case starts to crumble

The Washington Post reports today that classified information problems have appeared in another of the Guantanamo Bay 'espionage' cases, that of Airman Ahmad Halabi. Of course, like the case of Captain James Yee, this case has degenerated into something less than an espionage case, though Airman Halabi still does face charges of aiding the enemy. The Post reports that one of the Air Force investigators assigned to the case has himself developed problems with the handling and storage of classified information, and that military prosecutors have asked the judge to strike his name from all parts of the case. Presumably, the prosecution wants to limit any damage to its case from the mention of this guy at trial.
Last week, Air Force lawyers prosecuting Halabi asked the judge to exclude from the case any mention of the probe of Special Agent Marc Palmosina of the Air Force Office of Special Investigations. Palmosina's alleged misconduct is similar to some of the charges against Halabi.

The documents on compact discs at Palmosina's home did not concern the Halabi case, but instead focused on cargo transport operations, an area to which the agent had been assigned before he was sent to Guantanamo Bay, where the United States is holding more than 600 alleged al Qaeda and Taliban operatives, the government document said.

Palmosina, who has been removed from work on the Halabi case, could not be reached for comment, and the Air Force declined to confirm whether he is being investigated or to provide the name of his attorney.

* * *
Military officials began looking at Palmosina last fall, during his one-month stint at Guantanamo Bay working on the Halabi case, the document said. Last Friday, prosecutors in the Halabi case filed the document, which asks the judge to remove from Halabi's upcoming court-martial any mention of the Palmosina investigation.
Analysis: Without making light of a really serious situation for the defendant, this is starting to become comical. The prosecution in the Yee case fell apart largely because there was never a proper classification review done of the documents that Yee was alleged to have mishandled. The Army and its JAGs were responsible for that case. Now, we have similar problems emerging in the Halabi case, which is being handled by the Air Force and its JAGs. These problems make me think that we might have some sort of larger systemic problem with the classification of information regarding Guantanamo Bay. It's possible that the government has overclassified a lot of material relating to that mission, and that it did so with great haste and little thought about the secondary and tertiary consequences of that overclassification. Thus, to get their jobs done, officers at Gitmo are having to break the classification rules in order to be more efficient (e.g. storing some material on their laptops instead of checking it back in each day). There are at least two results: (1) lots of people are breaking the rules to be more efficient, and (2) the military is selectively prosecuting/disciplining individuals for reasons known only to senior decisionmakers in the Pentagon.

That's not to say that mishandling classified information is a good thing -- it's not. The interrogations at Gitmo are said to be producing valuable, actionable intelligence. Moreover, the sources and methods used there are also things we want to keep secret. But imagine you're an staff officer at Gitmo, living and working in one of the most secure locations in the world. Given the pervasive security there, you might be tempted to bend the rules a little to be more efficient, because after all, it's not like there's a lot of outsiders poking around Gitmo to see what you're working on.

For what it's worth, classified information often wreaks havoc on federal district courts too. More than 20 years ago, Congress passed the Classified Information Procedures Act to deal with this problem, and to set up judicial procedures for the management of classified information in espionage cases and other cases that used such material. The Act creates processes for ex parte and in camera review of classified material, as well as other mechanisms for the safeguarding of this information in open court. I've reviewed the statute and its history for the casebook I put together, and it's generally worked. But one need only look at the Zacarias Moussaoui prosecution to see the problems with classified material that can emerge in federal district court. It's really hard to manage this kind of evidence.

None of this excuses the way the Yee and Halabi cases have been conducted. In these two cases, the classification process itself seems to have created problems that prosecutors now have trouble fixing. I'm reluctant to endorse any criminal liability for Captain Yee and Airman Halabi when such problems in the classification process exist. It seems to me, as a basic matter of substantive and procedural justice, that the military ought to square away its classification system before it puts anyone in jail for breaking the rules that its own prosecutors and investigators can't follow. My SWAG (sophisticated wild a**ed guess) is that the military will start negotiating a plea bargain in the Halabi case as they have in the Yee case. More to follow...
Can a volunteer soldier become a conscientious objector?
The answer, according to Slate, is maybe. The issue has come to light recently with the case of SSG Camilo Mejia, who has claimed CO status after going AWOL from his unit in Iraq while on leave in the U.S. "CO" status used to apply to conscription, and it seems odd that a person who might become a CO would volunteer for military service in today's Army. But that's precisely what does happen, and the military actually does grant discharges to those individuals provided they can show evidence of objection to "participation in war in any form or the bearing of arms." Check out the Slate explainer, and accompanying NPR segment, for more if you're interested.

And there's more: two medics with 1-18 Inf (M), part of the 1st Infantry Division in Iraq, have declared themselves to be conscientious objectors as well. The facts of these soldiers' cases are under wraps, partly because they've been sequestered from the media by their commander. But honestly, I'm less than sympathetic to their plight. In my opinion, the time for objection is at the recruiting office -- or in basic training, when your drill sergeant tells you that your primary mission as a soldier is to fight as an infantryman and kill people. The bottom line, as I see it, is that these COs are willing to abandon their buddies who are in a combat zone. Regardless of their change of heart or the depth of their views, I find that desertion of their buddies to be a singularly selfish and immoral act.

Wednesday, March 17, 2004

JAGs with a purpose

Jess Bravin reports in Thursday's Wall Street Journal (subscription required) on the military lawyers who have been assigned the mission of defending detainees at Guantanamo Bay. With tribunals scheduled to start any day now, these lawyers have received a great deal of attention for their initial moves as defense attorneys. Among other things, they have filed a 'friend of the court' brief challenging the Bush Administration before the Supreme Court, and held press conferences denouncing the commissions as unfair and improper. As Mr. Bravin writes, the JAGs are fighting to win, not to make the system look good -- one of the JAGs in the story said that he has "absolutely no desire to be the loyal opposition".
In November 2001, when President Bush authorized the first U.S. military tribunals since World War II, the process drew fire from human-rights groups and some legal experts. Now the critics have an unexpected set of allies: the detainees' five military lawyers, who have launched a surprisingly vigorous assault on the system that hired them.

The five JAGs -- as members of the Judge Advocate General's Corps, the military's legal arm, are known -- have attacked the tribunals as inherently unfair, contrary to international law and susceptible to political influence. In a brief they submitted to the Supreme Court, Cmdr. Swift wrote a section comparing the president with King George III and likening the treatment of tribunal defendants to the injustices that helped spark the American Revolution.

Ultimately, the JAGs are expected to challenge virtually every aspect of the administration's policies on Guantanamo detainees, from the denial of protections of the Geneva Conventions to the interrogation methods used in extracting statements. As the first trials draw near, the JAGs' approach could force the administration either to answer in open court or risk undercutting its longstanding promise that the tribunals will be "full and fair."

Citing national-security concerns, Mr. Bush decreed the tribunals free from federal court review, "the principles of law and the rules of evidence" used in civilian trials and the rights afforded U.S. military defendants in courts-martial. That gives the tribunal members, who are military officers selected by the Pentagon, vast leeway to consider hearsay, unsworn statements and other evidence that wouldn't pass muster under normal court procedures. Defendants are entitled to a military defense lawyer and, at their own expense, a civilian lawyer who can pass security checks. But they aren't guaranteed the right to see all the evidence against them.

As military officers defending accused enemies of the U.S., the JAGs say they are motivated by a mix of patriotic duty, personal values and a desire to help shape legal history. Air Force Col. Will Gunn, the Harvard-trained lawyer who heads the defense office, says he wants to show future generations that "even under fire we held firm to our ideals."

A new mess in the Balkans
: Laura Rozen passes along some bad news from Kosovo, where at least 8 Serbs have been killed in violence said to be the worst since NATO's 1999 Kosovo intervention.
The fighting erupted in midmorning in the divided city of Mitrovica after a protest over the drownings of at least two Albanian children. The protesters blamed Serbs for the deaths.

The province, in southern Serbia, is inhabited mostly by Albanians.

By nightfall the United Nations had lost control of several city centers, and mobs of Albanian men were attacking Serbian areas at will. In the provincial capital, Pristina, machine gunfire and explosions could be heard late into the night.

A United Nations police spokesman said the exact number of casualties was difficult to calculate because the police and peacekeeping troops had not re-established control.

"This is the severest case of unrest since the end of the war," said Derek Chappell, the chief United Nations police spokesman in Kosovo.
Analysis: I'm not saying that U.S./NATO troops would've prevented this from happening, but I think there's some question about whether the remaining UN/NATO/U.S. forces on the ground have the strength to stabilize the situation. Since 1999, America has gradually pulled out of Kosovo and Bosnia. And since the global war on terrorism started, the U.S. troop levels in the Balkans have dropped even further. (Ironic, considering the long-time presence of Islamist militants and Al Qaeda agents in the Balkans in support of the Bosnian Muslim population.) According to GlobalSecurity.Org, the U.S. currently has significantly less a brigade combat team in Kosovo. I am not certain about the strength of the UN mission in Kosovo. I'm also not certain about the strength of the recently reconstituted Kosovo civil police forces. But I seriously doubt this would have escalated to this point if we had the robust force in Kosovo that we had in 1999, or if there were some multinational force in there to maintain stability in our absence. More to follow...

Update I: The violence in Kosovo has escalated, claiming the lives of 22 people, according to the Washington Post. NATO has decided to dispatch additional troops -- including 150 additional U.S. soldiers -- to the region in order to quell the unrest.
NATO members, in a statement this morning, called "upon leaders in the region to take concrete action to restore peace and security.

The statement said the reinforcements--up to 700 additional troops--will demonstrate "the Alliance's will and capability to carry out its mission to provide security for all Kosovars, regardless of their ethnic identity."

About 17,500 NATO troops are already in the province. Some 150 additional U.S. troops were reported already en route along with 80 Italians, according to wire service reports. A spokesman for the British Ministry of Defense said it was considering sending 500 troops.

New weblog to check out
: Several law students have put together a group weblog called De Novo. On first glance, it looks like a really interesting site. Among other things, it's got a continuing symposium on legal education featuring essays from some of the brighter legal minds in the country. Check it out.
One step closer to military tribunals
: The Pentagon announced a minor rule change today for its planned military commissions that substitutes retired-Maj. Gen. John Altenburg as the "appointing authority". With defense counsel appointed, charges preferred, and minor changes like this taking place, I think it's a safe bet that tribunals will begin sometime this summer.
Washington Monthly launches new weblog: Political Animal
: The Washington Monthly has rolled out its new website, which is built around the "Political Animal" weblog hosted by Kevin Drum (formerly of CalPundit). The new site does a good job of incorporating Washington Monthly print content with the dynamic musings of Mr. Drum, and I've been told that the magazine plans to add more online content in coming weeks and months. Stay tuned.
Time to rethink women in the military?

Not by a long shot -- women proved their mettle in Operation Iraqi Freedom

James Revels, a retired Army colonel, has a column today on Military.Com arguing for a reevaluation of the American decision to send women into harm's way as part of ground combat units. He reiterates several of the common arguments on the subject, including physical ability, pregnancy, and sexual harassment. Here's an excerpt:
Dressing women in battle dress uniforms does not make them soldiers. Calling them soldiers does not mean they possess the requisite skills required of warriors.

No nation, in modern history, has advanced the cause of equality and women rights by sending women into combat. Until the American people demand reconsideration of existing deployment policies, women will continue to die needlessly in Iraq and Congress will continue to waste time and resources reviewing sexual assault complaints.

For years, the senior leadership ignored declining physical standards caused by increasing reliance on female recruits to fill manpower quotas. Mention pregnancy rates and no comment follows. Now, because some women, who are as culpable as some men at initiating sexual contact, are complaining, the brass are forced to take another look at predictable problems created by sex integration.

* * *
No one seems to understand that it is not the primary purpose of our armed forces to provide employment opportunities for women and young men. Our armed forces exist for the single purpose of defending the nation by destroying any enemy that threatens our national security. Clearly, women can contribute to the nation's defense, but not as warriors.
Analysis: There's a lot in here to respond to. I'll start with the general, and move to the specific. Col. Revels' conclusion -- "Clearly, women can contribute to the nation's defense, but not as warriors." -- is way off base. It's also unsupported by the recent evidence from Operation Iraqi Freedom. Female soldiers and Marines fought as warriors and they fought well. The examples I'm most familiar with, as a former MP captain myself, are the stories of female military police soldiers and officers in Iraq and Afghanistan. As MPs, they conducted combat patrols, raids, cordon-and-search operations, convoy-escort missions, and numerous other operations indistinguishable from their infantry brethren. Indeed, I might say these MPs engaged in more dicey missions because they lacked the heavy armor of their mechanized infantry and armor brethren, and because they often deployed in smaller units -- teams and squads versus platoons and companies. Clearly, the evidence from Afghanistan and Iraq shows that women have fought as warriors -- and fought well. So I think this general statement is wrong.

Now, let's tackle some of the other arguments made by Col. Revels and others on this subject, such as Elaine Donnelly of the Center for Military Readiness (see my response to her).

(1) Physical Ability. The colonel writes that "For years, the senior leadership ignored declining physical standards caused by increasing reliance on female recruits to fill manpower quotas." This statement both mischaracterizes the facts and conflates the issues. Physical standards have not declined over time, contrary to popular myth. Indeed, if you look at physical fitness and health standards for induction during WWII and you compare them to today, you will see a marked increase in physical health and fitness standards. Veterans always want to say it was tougher back when they went through, but the truth is that it's not. Today's soldier is fitter, and forced to do more physically, than his or her father (or grandfather). Now, it's true that today's Air Force inductee does less physically than yesterday's (or today's) Army Ranger -- but that's obviously comparing apples and oranges.

Second, the increasing reliance on female recruits has not led to a decline in physical standards. The services have adopted physical-fitness test standards for each sex, after conducting exhaustive physiological studies on the subject to see what the right measures of fitness should be. But these are fitness tests -- not combat readiness tests -- and the standards are designed to test baseline fitness. In essence, they test for the ability to work long hours, be resistant to disease (historically the largest battlefield killer), deal with physiological and psychological stressors, and other factors. Consequently, age and gender-normed standards are appropriate, because these are not combat readiness tests. Any doctor will tell you that disease and fitness risks vary by age and sex, and the military's standards simply reflect that reality.

Where standards have not declined is in the combat-readiness standards expected of soldiers and Marines -- the requirement to road march for 12 miles, carry a wounded comrade, carry an M249 squad automatic weapon, etc. Every division I'm aware of has a training regulation (usually numbered 350-50-1) that outlines these standards for its subordinate units. In the units I served in -- gender-integrated combat MP units at the division level -- these standards were enforced without regard to gender. And that was because we, as leaders, set the standard and enforced it ruthlessly because we knew that these combat readiness standards were important. (It helped that the senior MP colonel in 4ID at this time was a tough-as-nails female West Point graduate with two combat patches and the experience to know the importance of enforcing standards.)

Col. Revels says that "Dressing women in battle dress uniforms does not make them soldiers", and he's right. It doesn't turn men into warriors either, and that's the point. Transforming an American citizen into a warrior takes a lot more than just a uniform. It takes good leadership, tough training, solid teamwork, experience and rigorous standards. It may well be true that many women can't make the cut to serve in the infantry -- but a lot of men can't meet those tough standards either.

So, there are two take-away points here. First, there is a salient difference between fitness standards and combat readiness standards -- a difference often lost on pundits who write on this issue. Second, the combat readiness standards have not declined. But they depend on the willingness of tough leaders to enforce them, and that does vary from unit to unit. I think it's safe to say that units like the 507th Maintenance Company (PFC Jessica Lynch's unit) enforced a less rigorous PT, weapons, and soldier skills program that the 4th Military Police Company (my old unit). But that's not a function of gender -- it's a function of leadership.

(2) Pregnancy. This argument usually gets batted around with reference to "love boats" in the first Gulf War and streams of women that had to be sent home before Desert Storm and Operation Iraqi Freedom. I have yet to see statistics on this issue from OIF, but anecdotal reports from the field indicate that pregnancy was not a major issue on this deployment. It is a risk on a deployment, inherent in any situation where you combine young men and women without easy access to a Savon Drugs or family planning clinic. But generally, I have heard that leaders effectively managed this issue during their deployments to Iraq. Two friends who served as company commanders explained it this way to me: their female soldiers didn't want to get pregnant because that would mean letting their male buddies down, and deserting them. Unit cohesion can be a pretty powerful -- even the most powerful -- motivator in combat. (See "Why They Fight: Combat Motivation in the Iraq War" by Dr. Leonard Wong, et al., of the Army War College.) I'm not surprised to see it affecting this issue too.

Where pregnancy is a problem is in the pre-deployment process. Part of this is perception -- male soldiers see one pregnant female skipping the deployment and they generalize from that to form opinions about the entire class of female soldiers. Part is real -- there are women who get pregnant before a deployment, and they are not deployed as a result. I've interviewed military physicians and military sociologists on this subject, and they say that it's a mix of women who accidentally get pregnant, women who intended to get pregnant, and those women who got pregnant in order to avoid the deployment -- with the last category representing a very small number. The reasons are obvious -- women are rational actors, and they're not (generally) willing to bring a life into this world just to skip a deployment. However, the Army (and I think the Marines too) have gotten a lot better at dealing with this issue in the post-1990s operational environment. After dealing with this in Desert Storm, Somalia, Haiti, Bosnia, and Kosovo, leaders now know how to manage this issue in connection with deployments. Consequently, it is less of an issue today than it was a decade ago. Dr. Laura Miller, an expert on military culture and gender issues at the RAND Corporation, had this to say: "It used to be that the deployment child-care plans of many men and women were convenient fictions--the Army ensures that they're much better now."

(3) Sexual Harassment. Talk about blaming the victim! Let me get this right. The presence of women is so inherently tempting -- so inherently disruptive -- that we should seriously consider removing them from the force so as to reduce the sexual harassment (and sexual assault) problem? That flies in the face of 30 years of sexual harassment and rape law, not to mention logic. In America, we typically don't punish the victims (as a class) for misconduct committed against them. The way to fix the military's sex problem is not to remove women, but to make men and women behave better.

That, in turn, takes tough leadership and strict discipline. I have no problem with prosecuting servicemembers for misconduct -- even throwing the book at them -- in order to correct this problem. Indeed, I think that most instances of sexual misconduct are often underpunished by commanders. That underpunishment tacitly condones such behavior, and leads rational male actors to evaluate their planned sexual misconduct in light of lenient sentences. My experience as an MP platoon leader was that if you discipline the little things, your soldiers will often develop their own moral framework for making the right decisions about the hard problems they will see in the future.

And to those three arguments, I'll add a fourth problem that is more sophisticated -- and thus less prone to argumentation by unsophisticated critics like Col. Revels and Ms. Donnelly:

(4) Unit Cohesion. The very presence of women can be disruptive, as it adds a big element of heterogeneity to the group dynamic of a given military unit. For obvious reasons, homogenous units tend to be easier to develop into cohesive teams; more diverse units tend to present more leadership challenges because of more complex social dynamics. Other variables, such as race, socio-economic status, education level, fitness level, marksmanship ability, age, etc., pale in comparison to sex when it comes to the effect on the group dynamic. Dr. Anna Simons said it well in my article: Forget the sex--this is about the clouding of judgment. No matter how close the friendship is between men, it still doesn't jeopardize their decisions the way that love does." Her experience is built on years of studying Army Special Forces A-Teams, and other special operations units, so she knows what she's talking about. Regardless of any other fact, women will always complicate the group dynamic in a unit and present a leadership challenge.

That said, the Army has learned how to build cohesive, effective teams that are ready for combat. As I've written: "[V]arious studies of mixed-gender units have shown that cohesion was not a problem--both in exercises at the National Training Center and in actual combat. (The critical variable in unit cohesion proved to be not gender, but such differentials as the unit leader's time in command and the length of time the troops had spent together.)" Even in units led by women, the Army has seen comparable levels of effectiveness, because it has learned how to build cohesive units that fight well despite (or even because of) their diversity. Moreover, recent experience in Islamic countries has shown the value of women for pure effectiveness reasons -- you need female soldiers to interface with female civilians in these countries for diplomatic reasons.

The bottom line, in my opinion, is that women have done well in the military and earned their right to serve our nation as warriors. I wrote in December 2002 that female performance in Iraq would likely determine the direction of this issue over the next decade. The results are in: women fought in Iraq, and they fought well. The result is that the Army has decided to change its rules for the assignment of women in the new design for the 3rd Infantry Division. First reports indicate that women did well enough in Iraq to convince the Army to broaden its opportunities for women in the new 3ID force structure, but details are still sketchy. More to follow on this point.

Unfortunately, the success of women has generated some blowback from critics like Col. Revels and Ms. Donnelly -- critics who think women have no place in combat, in the military, or possibly even in the work force. They see the military as an all-male warriors club, where women ought not go. However, I find their arguments to be wholly unpersuasive, based as they are on flimsy evidence and conjecture without reference to the facts. The facts clearly show that women did well in Operation Enduring Freedom and Operation Iraqi Freedom. But I suspect that Col. Revels, Ms. Donnelly and others don't really care about the facts; they only care about an anachronistic vision of the military (and society) that is completely divorced from 21st Century realities about women and their performance in combat.

Update I: The Army's public affairs office has this story today on the women who have made the ultimate sacrifice as part of Operation Iraqi Freedom.
Army says it shouldn't have surveilled Texas law conferees

The New York Times reports briefly today that Army officials have acknowledged wrongdoing on the part of 2 Army intelligence officials from Fort Hood, TX, who tried to gather information from UT-Austin about two people who attended an Islamic law conference there.
The Army acknowledged that two agents in its Intelligence and Security Command overstepped their authority in seeking information about a February conference on Islamic law at the University of Texas Law School. The agents sought the names of participants and a videotape of the conference after two Army lawyers reported suspicious behavior by an attendee. Army regulations bar its agents from investigating civilian affairs unless the F.B.I. waives jurisdiction.
Analysis: The story I got from former colleagues at Fort Hood was that these agents were acting because they thought the events at UT-Austin could pose some kind of a threat to Fort Hood, America's largest military base and home to roughly 42,000 troups and thousands of armored vehicles. I can sort of see the validity of that, because Fort Hood does have an interest in getting information about potential threats to the installation and its surrounding community. However, when I was there, we got this information through interface with state, local and federal authorities -- not through direct intelligence gathering. This seems a little far off the reservation, in literal and figurative terms.

Tuesday, March 16, 2004

Deal near in Gitmo chaplain case

The Washington Times reports today that Army prosecutors have tentatively struck a deal with Army Captain James Yee, originally accused of espionage at Guantanamo Bay but now thought to have only committed minor infractions of military law. Since the announcement of initial charges, the case has gone downhill for the Army, due both to zealous advocacy by Captain Yee's lawyer and administrative mistakes by the Army. Among other things, a military judge suspended the Art. 32 hearing (roughly analogous to a grand jury proceeding) because the Army had failed to conduct a proper classification review of the documents Captain Yee is alleged to have mishandled.
Negotiations ensued between U.S. Southern Command, which oversees the detention center at Guantanamo Bay, Cuba, and Eugene R. Fidell of Washington, Capt. Yee's civilian attorney.

The deal would have the government drop the classified-information charges. Capt. Yee would be subjected to administrative punishment on charges of committing adultery and storing pornographic material on his computer. He would resign from the Army with an honorable discharge.

The agreement would also give him immunity from charges stemming from his answers to questions about whether he engaged in espionage.

* * *
Mr. Fidell has repeatedly said his client is innocent of espionage charges.
Analysis: Without a doubt, I think the Army is eager to get this albatross off its neck. It now appears the Army and many commentators (including me), who howled for Captain Yee's scalp, were wrong. He may have been a lot of things, but he certainly wasn't a spy. And I think at this point, the Army is trying to salvage what it can of its public relations while still maintaining some rule of law for the miscellaneous charges that Captain Yee still stands accused of. Adultery, mishandling information and misusing a government computer are still criminal in the military, and it might set a bad precedent to let Captain Yee off for those crimes. That said, I think that an Art. 15 is the right punitive move for an officer accused of such crimes. I've seen these cases brought on active duty, and I think that is the punishment that fits the crime. It effectively ends the officer's career, but allows him to leave the service with an honorable discharge and no felony conviction. Law From The Center and I agree -- the ideal course of action here is to make this case go away as quickly and quietly as possible.
Book Recommendation
: I'm near the end of The Naked Growd by GWU Law Professor Jeffrey Rosen. I'd recommend it for anyone interested in some of the cutting-edge arguments about the propriety of ubiquitous police surveillance in America. This is also a good book for those who want to connect American criminal procedure law (as it stands today) with the technology of tomorrow.

However, that's not to say that I agree with Prof. Rosen, or that I think he gets it right in every part of his book. I think Prof. Rosen dismisses some proposals too quickly -- like the potential for use of data-mining for the purpose of generating particularized probable cause. I also think he gives short shrift to the legal, policy and practical arguments in favor of certain surveillance and "dataveillance" systems. The result is that his arguments seemed a little one-sided to me, as a former anti-terrorism planner and someone who's probably more partial to the security arguments than the liberty/privacy arguments.

For example, Prof. Rosen argues that there is no marginal benefit gained by using an x-ray machine that reveals every detail of a person's body ("the Naked Machine") versus a similar x-ray machine that anonymizes a person's anatomical detail, showing their body as a mannequin-like mass ("the Blob Machine"). Prof. Rosen says there is no marginal value in the Naked Machine, and that we should always pursue technologies like the Blob Machine because they give us the same security without the invasion of privacy. I disagree. There are times when more invasiveness does produce more security, and airport screenings are one of them. When composite materials are advanced enough to elude x-ray machines, as they are today, it may be necessary to have a more invasive screening device. Similarly, data-mining technologies are valuable when they include an anonymizing component, and can be used to see aggregate trends. But they can be significantly more valuable, in a security sense, when they include enough granularity so as to generate individualized suspicion. The whole point of TIA wasn't just to see trends, but to pick out the needles in a haystack who could then be arrested and prosecuted for their inchoate crimes before they could commit a terrorist attack. Of course, the very concept of inchoate crime raises questions about the nature of guilt, and whether we want a "Minority Report" society. So I admit there may be good liberty/privacy arguments against these technologies. But in his book, I think that Prof. Rosen dismisses the security arguments too easily in favor of the liberty/privacy arguments.

Finally, I think Prof. Rosen falls victim to the same tendency of many scholars and critics, which is to lump all the post-9/11 anti-terrorism measures together and speak against them at a very high level of generality. You certainly can synthesize a larger argument about privacy and security by connecting such things as the USA PATRIOT Act, Homeland Security Act, Total Information Awareness, detentions at Guantanamo, and exclusion of the press from immigration hearings. However, you must make this argument with a high level of detail in order to be effective, because otherwise you will be comparing apples to oranges. Prof. Rosen fails in this regard, despite his background as a law professor, although he succeeds in making some provocative theoretical points about these subjects.

Despite its problems, however, I still recommend The Naked Crowd. Its philosophical and theoretical discussions are quite provocative. If The Naked Crowd makes other people scratch their heads as hard as I have, then I guess Prof. Rosen has done his job.

Monday, March 15, 2004

Tomorrow's Soldier Today on NPR
: I'm slated to appear on NPR's "Day to Day" show today to talk about my Slate DARPATech article, and some of the more interesting pieces of technology which were on display last week at this conference. The segment is scheduled to air at 12:30 p.m. EST (9:30 a.m. PST) on KPCC, Southern California public radio, and also at WYNE in New York at the same time. KCRW, L.A.'s other NPR affiliate, will play the segment during the noon hour here on the West Coast. Update: Slate has uploaded the segment to its website.

Sunday, March 14, 2004

Interesting survey of the week

U.S. Army asks its own troops whether we'll ever catch OBL

The U.S. Army has an Internet portal site called "Army Knowledge Online". The Army requires every soldier and Army civilian to get an account, and to use it for interfacing with the Army e-bureaucracy. AKO includes a web-based e-mail system, an online discussion board, and an online document repository called the "Army Knowledge Collaboration Center".

On the AKO front page, where the system currently displays information about your current DNA and physical exam status, the Army is now asking its soldiers a survey question:
Poll Question: Will we ever catch Osama Bin Laden?

- Yes, by the end of March
- Yes, by the end of May
- Yes, by the end of 2005
- No
Results: I took the survey (answering "Yes, by the end of 2005"), and was put through to a new home page that showed the survey results. 12,816 votes have been cast out of a total Army population well over 1.5 million. Here's what American soldiers think about this question:
3% -- Yes, by the end of March
20% -- Yes, by the end of May
49% -- Yes, by the end of 2005
28% -- No
Analysis: I'm no statistician or sociologist, but I think these numbers are somewhat interesting. Of course, different people will see different things in the same statistics, but here's my take. Less than 1/4 of the Army thinks that the current spring offensive in Afghanistna will net Osama Bin Laden. And similarly, just over 1/4 of the Army is pessimistic (realistic?) enough to think that we may never catch Osama Bin Laden. However, roughly half of the respondents take a cautiously optimistic stance, which is characteristic of the soldiers that I know: we're going to catch the guy, and probably in the near term.

I'll track these numbers over the next few days/weeks to see if there's any change. More to follow...

Update I: As of 10:45 PST on March 15, 23,766 respondents have answered this question -- with precisely the same survey results. Either there's a remarkable amount of group-think in the Army, or they're posting dummy results on AKO.

Update II: At 4:09 p.m. PST on March 16, 31,029 soldiers have responded -- with exactly the same percentages for the results. Now I'm convinced this is a dummy survey.