Tuesday, April 20, 2004

Oral argument in the Gitmo case
: Slate's Dahlia Lithwick has a roundup of what happened today in the consolidated cases of Al-Odah v. United States and Rasul v. Bush -- collectively, the Guantanamo Bay jurisdiction cases. From her dispatch, available both in Slate and on NPR, it appears that the court fumbled around on the issue without either side scoring significant points. My guess is that we'll get a muddled decision based largely on jurisdictional grounds, and nothing earth shattering. The monumental decision will likely be handed down in next week's cases -- Hamdi and Padilla -- involving U.S. citizens designated as enemy combatants.

For more on oral argument, see Jess Bravin's report on the argument in the Wall Street Journal (subscription required), Linda Greenhouse's coverage in the New York Times, Charles Lane's story in the Washington Post, and David Savage's article in tomorrow's LA Times.

The consensus of these five reports is that the justices appear skeptical of the Bush Administration's all-or-nothing stance in the Guantanamo case. So far, the administration has maintained that there ought to be no right of habeas corpus -- and by extension, no role for the courts -- in the case of the Guantanamo detainees. There is good law to support this position, but it raises eyebrows among a lot of legal scholars and political leaders at home and abroad. We'll see where the Court goes with this one.
Iraqis establish tribunal for Saddam
: The AP reports that the Iraqi Governing Council has set up an entity to try former dictator Saddam Hussein and his top lieutenants according to Iraqi law and a statute passed late last year. So far, it looks like this tribunal will focus on the crimes committed by Hussein against his own people, rather than those against the Kuwaitis or Iranians, which is basically what I predicted last year. It will be very interesting to see how this tribunal unfolds. I also think there will be a very complex and interesting interaction between this trial and the security situation on the ground in Iraq. More to follow...
Special Forces general to speak on counterinsurgency at UCLA
: If you're in Los Angeles and have some time tomorrow, you may want to attend a lecture by U.S. Army Major General Geoffrey Lambert at UCLA's Anderson School at 3:30 p.m. MG Lambert commands the U.S. Army John F. Kennedy Special Warfare Center and School, and he will speak on "a new and fundamentally different approach to planning modern warfare--a paradigm shift that not only provides more options for the U.S. military, but also results in wars being designed backwards to forwards where humanitarian relief and compassion are critical to success." It sounds like it will be an amazing lecture from one of the Army's leading warrior-intellectuals.
Oregon Guardsman combat story disputed

CPL Dana Beaudine, the Oregon National Guardsman who claimed he was mistreated by his employer after returning from combat in Iraq, apparently lied to the Seattle Times about the story. After running the story, The Times received a flurry of e-mails from officers and NCOs in the soldier's unit, effectively quashing his entire story. The Army even cancelled his Purple Heart recommendation, after finding that his wounds were not the result of hostile action. Suffice to say, I've got a bad taste in my mouth for staking some of my personal credibility on this guy's story. (Thanks to Mudville for passing this story along.)
In fact, no one from his unit contacted by The Times could corroborate Beaudine's story.

"You have been fooled," Command Sgt. Maj. Gerald Schleining Jr. wrote in an e-mail to The Times from Kuwait after the story was published. "Beaudine was never injured in armed conflict. He has never been to Basrah or Iraq for that matter."

Capt. John Robinson, who said he was Beaudine's commander in C Company of the 1st Battalion, 162nd Infantry Regiment, also disputed Beaudine's account.

"This is a disgrace to all those who have legitimately received injuries or died in the combat actions since the first day of the war," Robinson said.

Beaudine, who was honorably discharged in February, insists his story is true.
Analysis: I don't think this necessarily changes the legal analysis of what happened in this case. CPL Beaudine was mobilized and put on active duty. He came back under somewhat nefarious circumstances, and subsequently claimed mistreatment at the hands of his employer. He filed a complaint with the Labor Department, and that agency's investigators found misconduct by his employer. And he may have a legally cognizable claim in federal court if his employer decides not to settle. So, this is still a case of bad corporate behavior under the USERRA; the victim just isn't as honorable of a person as originally reported. Still, a correction to the record is in order, and I regret taking such a hard stand on this guy's behalf in light of his apparent fabrications.
President Bush promotes the Patriot Act's renewal

President Bush has launched a public campaign to press the public -- and by extension, Congress -- to renew key provisions of the USA PATRIOT Act (P.L. 107-56) which are set to expire at the end of 2005. The AP reports that he spoke yesterday in Pennsylvania, and that he will speak today in Buffalo, New York, on the subject. The choice of Buffalo is no accident -- it was where the "Lackawanna Six" were prosecuted for providing material support to terrorism (all six pled guilty). Here's what the President's been saying on the road:
After September the 11th, we took another vital step to fight terror, and that's what I want to talk about today. I want to talk about the Patriot Act. It's a law that I signed into law. It's a law that was overwhelmingly passed in the House and the Senate. It's a law that is making America safer. It's an important piece of legislation.

First, before September the 11th, law enforcement, intelligence, and national security officials were prevented by legal and bureaucratic restrictions from sharing critical information with each other, and with state and local police departments.

We had -- one group of the FBI knows something, but they couldn't talk to the other group in the FBI -- because of law and bureaucratic interpretation. You cannot fight the war on terror unless all bodies of your government at the federal, state, and local level are capable of sharing intelligence on a real-time basis. We could not get a complete picture of terrorist threats, therefore. People had -- different people had a piece of the puzzle, but because of law, they couldn't get all the pieces in the same place. And so we removed those barriers, removed the walls. You hear the talk about the walls that separate certain aspects of government; they have been removed by the Patriot Act. And now, law enforcement and intelligence communities are working together to share information to better prevent an attack on America.

* * *
The reason I bring it up is because many of the Patriot Act's anti-terrorism tools are set to expire next year, including key provisions that allow our intelligence and law enforcement agencies to share information. In other words, Congress passed it and said, well, maybe the war on terror won't go on very long, and, therefore, these tools are set to expire. The problem is, the war on terror continues. And yet some senators and congressmen not only want to let the provisions expire, but they want to roll back some of the act's permanent features. And it doesn't make any sense. We can't return to the days of false hope. The terrorists declared war on the United States of America. And the Congress must give law enforcement all the tools necessary to protect the American people. (Applause.)
Analysis: There's actually a lot of interesting stuff in the President's speech that I recommend to anyone interested in understanding the policy debate over the Patriot Act. The President references roving wiretap power, administrative subpoena power, sentencing guidelines, and other technical areas usually reserved for lawyers and law review articles. His ultimate point is that these powers are vital for the Justice Department, and that without them, the American law enforcement community cannot effectively fight terrorism. Perhaps... although I think the the administration will have to sacrifice some of these powers if it wants to get the bulk of the Act renewed when its sunset provision kicks in.

My prediction is that the administration will sacrifice some of the Act's provisions, such as the notorious "library record" Sec. 215, in order to get the more important parts of the Act renewed. They'll do this in order to seize the moral high ground and show that they're willing to be reasonable on this stuff. The irony, of course, is that this most notorious provision has never been used, thanks to other procedures which allow DOJ to get the same records without going through the onerous FISA/Sec. 215 process.

Second, I think the Administration will play serious political hardball when it comes time to push this legislation through Congress. We got a taste of this when the Administration fought for the Homeland Security Act of 2002. In essence, "anyone who's not with us is against us" where these legislative items are concerned. The Administration will procure a long list of prosecutors, police officers, and others to testify about the need for such powers -- it's easy to find law enforcers on both sides of the aisle who support these measures. And they will paint anyone opposed to the Act's renewal as a tacit supporter of terrorism. That's going to be very ugly, but it's going to be what happens. And if it's timed to coincide with the 2004 election, as I think it will be, you're going to see a lot of negative campaigning (reminiscent of what was done to fmr-Sen. Max Cleland) on this subject. Anyone opposed to the Act's renewal will be targeted in their state or district by the GOP with intensely negative ads hinting their support for terrorism.

My guess is that a lot of Senators and Congressman will fear this attack machine and vote for the Act's renewal, regardless of any lingering concerns over civil liberties or the Act's efficacy. At best, you'll see the moderation of certain provisions, or the addition of reporting requirements about the use of certain provisions (like FISA warrants). But in the end, I am all but certain that the Patriot Act will be renewed -- this time, most likely, without a sunset provision at all.
How Appealling moves to new site
: Howard Bashman, the appellate litigator whose weblog has become the best source on the web for legal news, has officially moved to the website of Legal Affairs magazine. This is the latest in a series of moves by the best bloggers in the business, and by many magazines to acquire an online weblog presence. (See, e.g., Tapped and The Washington Monthly.) Clearly, there is great synergy between Howard's reporting and Legal Affairs, and I think this will be an excellent move for both entities.

Speaking of Legal Affairs... the magazine announced the winners of its 2004 legal writing contest for law students today. Congratulations to Kate Andrias of Yale Law School, who was selected as the first-place winner of this year's contest for her entry, "Locked Out," an essay about employers who are curtailing workers' rights by requiring them to sign arbitration agreements that bar pursuit of their interests in court.
Bad news in the newsroom

The Wall Street Journal is one of my preferred news sources, because its news articles offer an excellent blend of reporting and analysis that far surpasses the average dispatch. I have come to know several WSJ reporters, including one who I actually knew when I was a reporter in college and he was a law student. Unfortunately, the Wall Street Journal does not appear to be taking care of its reporters with the same diligence that they are taking care of their beats. The AP reports that contractual negotiations between the newspaper and the reporters' union have broken down, and that labor relations at the paper are at an all-time low.
Nearly 100 staffers from The Wall Street Journal picketed the newspaper's headquarters in New York Wednesday as relations with the company's main union turned increasingly tense.

The protest lasted just under an hour and was aimed at pressuring the company ahead of the next bargaining session, which is scheduled for April 14. The newspaper's employees have been working without a contract for a year.

Besides the picketing, most of the newspaper's reporters at the New York headquarters showed up for work at about 1:30 p.m. as part of a work-to-rule job action. The union's contract calls for a 35-hour work week, but the reporters often put in far longer hours.

E.S. Browning, a stock market reporter with 25 years' experience at the paper, said that the normally collegial atmosphere at the Journal between reporters and management was breaking down, particularly since the company was seeking cutbacks in health care coverage at the same time that top managers were receiving large pay increases.
It goes without saying that if the Wall Street Journal can treat its byline reporters this way, then imagine how it (and other large newspapers) can treat their freelance writers and other staff. I have a personal interest in this, because I contribute occasionally to newspapers and magazines, and because several of my friends make a living writing for these big papers. Although I'm not a fan of unions and labor stoppages generally, I also recognize the benefits of collective bargaining. Indeed, I benefit from the work of the graduate student union here at UCLA, which negotiated the contract under which I work as a teaching fellow and research assistant. The facts in the WSJ situation seem to be pretty unfortunate, and I hope that the newspaper can see fit to do the right thing here and take care of its employees. They bust their humps for the paper, and they deserve better than what they're getting.
Les armees privees proliferent en Irak
: Guillemette Faure has an article in Le Figaro today which quotes me and others on the subject of private military contractors. I'm not fluent in French, so I'm not sure what the article says exactly. But it was fun to do the interview, and to see my quotes translated into another language.

And if you want to see more problems with the overuse of military contractors, see this article in today's Los Angeles Times. It describes, quite appallingly, what happens to American soldiers when certain services are contracted out and then the contractors fail to deliver because of deteriorating security or other reasons. As DaggerJag points out in his report from Iraq, "Unlike a soldier, you can't force a civilian trucker to drive if they don't want to." Unfortunately, soldiers (and Iraqi civilians) bear the hardship when contractors walk off their jobs or stay hunkered down.
... new troops arrived to Forward Operating Base Duke, an empty swath of desert outside the holy city of Najaf, to find a logistical nightmare.

Military buyers had signed contracts with local vendors to supply everything from water to portable tents. But the contractors were balking at delivering the goods.

"When the security situation gets bad, they don't want to deliver, and that's what's happening now,'" said Army Capt. Ron Talarico, who is helping coordinate supplies.

A temporary water shortage was remedied, but the camp still has only six portable toilets for the 2,500 troops because the company that provides them is reluctant to travel the highway.

There are no showers or laundry facilities. A shortage of tents forces soldiers to sleep in their vehicles in 100-degree weather and blistering sandstorms.

"It's a wasteland here," said 1st Lt. Matt Nethers, 24, of Los Alamitos. "The Army logistical system isn't what it could be."

Sunday, April 18, 2004

Who pays the cost of chaos in Iraq?
The Iraqis

Sunday's Washington Post carries this article by Rajiv Chandrasekaran and Karl Vick on the front page which does a great job of detailing the effects of the last three weeks of violence in Iraq. A great deal of media attention has focused on the pitched battles between U.S. troops and Iraqi insurgents, but little has been written or reported on the effects this insurgency is having on the reconstruction of Iraq. This article hits the center-mass of that subject, and explains exactly what has happened to nation-building efforts since the start of this wave of violence:
The violence has brought the U.S.-funded reconstruction of Iraq to a near-halt, according to U.S. officials and private contractors.

Thousands of workers for private contractors have been confined to their quarters in the highly fortified Green Zone in Baghdad that also houses the headquarters of the U.S. occupation authority. Routine trips outside the compound to repair power plants, water-treatment facilities and other parts of Iraq's crumbling infrastructure have been deemed too dangerous, even with armed escorts.

Compounding the problem is a growing fear that insurgents will seek retribution against Iraqis working for private contractors and the occupation authority. Scores of Iraqis have stopped showing up for their jobs as translators, support staff and maintenance personnel in the Green Zone, even though there is a lack of lucrative employment elsewhere.

The security situation "has dramatically affected reconstruction," said another U.S. official in Baghdad. "How can you rebuild the country when you're confined to quarters, when only small portions of your Iraqi staff are showing up for work on any given day?"

Among the firms that have restricted the movements of their employees are the two of the largest private contractors in Iraq: Bechtel Corp. and Kellogg Brown & Root, a subsidiary of Halliburton Co. The Research Triangle Institute, a North Carolina-based firm that has been helping set up city councils across Iraq, has sent 80 staffers -- about 40 percent of its non-Iraqi workforce -- to Kuwait as a precautionary measure.

Security concerns also have hindered the implementation of a $6 billion, U.S.-funded wave of construction projects intended to help improve security by putting legions of unemployed young men to work.

"We want to offer people opportunities that compete with the financial incentives they get" from insurgent leaders, an American official said. "But it's a Catch-22. We can't start the work that's supposed to help improve security until security improves."
Analysis: This isn't rocket science. Smart people including Gen. Eric Shinseki, James Fallows, James Dobbins, and others have written on the relationship between security and nation-building. Bottom line -- you cannot effectively do nation-building without security. This principle is as fundamental as any to the conduct of nation-buildling missions. You cannot build roads, schools, factories and utility plants until the people feel secure in their homes and cities -- and until the contractors feel secure enough to do the work. This dispatch in the Washington Post indicates that we have a very long way to go before we set the conditions for effective nation-building: namely, a secure-enough situation that allows contractors and Iraqis to work. Until we tamp down this insurgency and restore order to the nation, everything else is on hold.

Update: The New York Times has a front-page article in Monday's paper on the subject of private military contractors, and some of the problems associated with their (over)use in Iraq. This is something I've written on too. But here's a report from an Army officer now deployed to Iraq with the 1st Infantry Division, which makes the point quite well:
... the recent "problems" we've been having over here have had some interesting side effects. Many of the civilian truck drivers who are working in this area have refused to drive on our convoys and that has slowed down delivery of everything from mail to food (I'm going to stock up on my favorite MREs for when they close the mess hall). I've heard that something close to 200 KBR drivers have quit and the Turkish drivers aren't going past Mosul. So much for Rumsfeld's notion that we can "outsource" all the non-essential jobs in the army to contractors. Unlike a soldier, you can't force a civilian trucker to drive if they don't want to.

History of the 'state secrets' privilege
: Sunday's Los Angeles Times has a very artfully written history/news piece on the history behind United States v. Reynolds, the case where the Supreme Court announced an evidentiary privilege for national security information. Today, this privilege comes up in terrorism cases, False Claims Act cases, and a variety of others where state secrets are at stake; it also has implications for other cases of national security deference, such as the three 'enemy combatant' cases now pending before the Supreme Court.

Part II appears in Monday's paper, and also makes for fascinating reading. Anyone interested in the intersection of law and national security should read this series.

Saturday, April 17, 2004

Iraqi insurgents and the law of war

I have written a bit on the law of war and its applicability to the conflict in Iraq. My inbox has been filled by readers calling my articles naive, because of the slim chance that this enemy will comply with the law of war. To rebut those criticisms, I offer this excerpt from a CNN article on the capture of PFC Keith Matthew Maupin, an Army reservist in Iraq. While his captors don't explicitly reference the 3rd Geneva Convention or other international covenants by name, they certainly incorporate these principles as they're found in Islamic law:
"We have taken one of the U.S. soldiers hostage," the narrator [of the video depicting Maupin] said.

"He is in good health and being treated based on the tenets of Islamic law for the treatment of soldiers taken hostage. We will keep him until we trade him for our prisoners in the custody of the U.S. enemy. We want them to know -- and the whole world to know -- that when we took him in, he came out of his tank holding a white flag and he lay face down on the ground, just like other soldiers."
Analysis: This is interesting for a few reasons. First, the conventional wisdom has been that the Iraqis would not follow the laws of war in their insurgency. That has been true in some situations, like the mutilation of the four contractors two weeks ago in Fallujah. However, both the Iraqi armed forces and the Iraqi insurgents appear to be following some codes of conduct with respect to the treatment of U.S. soldiers in captivity. Self-interest is probably animating this decision by the Iraqis. They probably want to encourage reciprocity, given the large numbers of Iraqi soldiers and insurgents in U.S. custody. The Iraqis may also be concerned about reprisals, both from U.S. forces and from the Iraqi justice system if they're ever captured.

Of course, the Iraqi insurgents continue to violate the law of war in many other situations. They employ perfidy as a standard tactic. They often hide in protected sites like mosques and schools and hospitals, putting Iraqi civilians in the crosshairs as a consequence. Iraqi insurgents use indiscriminate IEDs which are as likely to kill Iraqis or foreign civilians as U.S. soldiers. And the list goes on. But this story adds at least one counterexample of where the Iraqis are following the law of armed conflict. That makes it interesting... at least to academics like me.

Update: I'm not an expert on Islamic law, and some of my analysis above assumes that Islamic law thinks about prisoners of war in roughly the same terms as our Western theological traditions. (Contemporary secular laws of war evolved from chivalric traditions and Western theological doctrine.) However, I might have spoke too soon. The folks over at (a site which makes no claim to objectivity) have a piece on this story as well, along with this citation to a relevant section of Islamic law:
When an adult male is taken captive, the caliph considers the interests (...of Islam and the Muslims) and decides between the prisoner's death, slavery, release without paying anything, or ransoming himself in exchange for money or for a Muslim captive held by the enemy. ('Umdat as-Salik, o9.14)
Assuming that's true, then there is a very loose connection between Islamic law and the 3rd Geneva Convention with respect to the proper treatment of prisoners of war. International law generally does not allow for the options of death, slavery or release upon ransom for a prisoner of war. In limited situations, the 3rd Geneva Convention does allow for repatriation exchanges. So, I should restate my analysis. The insurgents in Iraq are following some law of armed conflict -- just not the one that we subscribe to.

Suffice to say, there are very interesting theoretical issues that flow from the subscription of different sides to different laws of war and different conceptions of wartime morality. Which body of law controls? If one side commits a crime by the other's laws, does the other have any moral claim to try the crime? Is there any objective or universal law which governs each side? In a post-modern, 4th Generation conflict, is there any place for a law of war?

Friday, April 16, 2004

A prescription for the prosecution

Dahlia Lithwick has a smartly written essay this afternoon in Slate on the Justice Department trend towards prosecuting so-called "little fish" in the war on terrorism, and the implications of this trend for justice writ large. Her ultimate conclusion: that DOJ's decision to lock up the real terrorists like Khalid Sheikh Mohammed without a trial, while putting the small fries like Sami Omar Al-Hussayen on trial, does little to further the interests of justice.
The real question at the core of the Al-Hussayen trial is the same question that plagues the other big terror trials that have occurred since 9/11: Is this really the best way to stop terror? It's clear that the Bush administration doesn't believe in open criminal trials for "real" terrorists. That's why accused American citizens like Yaser Esam Hamdi and Jose Padilla are languishing in Navy brigs right now and why a ranking al-Qaida member, accused of planning the 9/11 attacks, Ramzi Binalshibh is still being interrogated in some secret location. It's also clear that the administration is not really all that interested in a fair trial for its 9/11 scapegoat of choice, Zacarias Moussaoui. Long after it became apparent that he was never intended to be the 20th hijacker, Moussaoui's trial remains stalled over the government's insistence on imposing the death penalty. The administration is thus using the civilian courts to try only the low-level conspirators; the "passive supporters," the folks who don't quite rise to the level of terrorist—most of whom are just losers and misanthropes.

* * *
Because we haven't caught many real terrorists in the act of terrorism since 9/11, and since we won't trust those we have caught to the criminal justice system, we have been left to rely on this "material support" provision to convict numerous individuals, many of whom are Americans. So far, the folks convicted of terror-related offenses have been bit players, as is evidenced by the relatively short sentences they've received. No one would characterize them as perfect innocents—several tried to fight in Afghanistan; some look like members of sleeper cells. But no one can argue—although Attorney General John Ashcroft has certainly tried—that the courts have played a vital role in stopping terror attacks in this country. In exchange for this handful of relatively minor convictions, the Justice Department has condoned outrageous prosecutorial excesses, all to prove that these convictions matter more than they do. A sampling of the major terror convictions since 9/11 highlights the problem ...
Analysis: She goes onto cite the cases of the "Detroit Three", the "Lackawanna Six", and the "Portland Seven" (query - why does DOJ use such silly monikers for all these defendants?) to make her point. And I think it's a valid argument. DOJ has put a lot of resources into prosecuting these kinds of individuals for violations of 18 U.S.C. 2339a and 2339b, the "material support" statutes. The administration has justified this with the argument that it has been going after inchoate forms of terrorism -- that is, targeting terror cells in their infant stages before they can develop, mature, and conduct actual attacks. I think this focus on material support needs to be a part of the DOJ strategy, but I agree with Ms. Lithwick's question -- should it really be the main focus of the administration's legal war on terror?

The administration has advanced a number of arguments for why it should not put a real terrorist on trial, and it has pointed to the circus trial of Zacarias Moussaoui as its main evidence for what would happen if it did. The biggest (and most valid, in my opinion) reason is that a trial would interfere with ongoing intelligence collection efforts, both by impeding continued interrogation of the defendant (e.g. Khalid Sheikh Mohammed) and by exposing "sources and methods" used in connection with the defendant. This is a very real concern. But I have to wonder whether this concern is somewhat diminished 12, 18, 24 months after the capture of these terrorists. Moreover, there are strong procedural safeguards in place (collectively codified as the Classified Information Procedures Act) for dealing with classified material in federal court, and a number of bigtime espionage cases have been conducted without a compromise of "sources and methods". It seems to me that the administration could mitigate these problems if it wanted to. In actuality, it seems to me that the real issue is one of certainty -- the White House and Justice Department don't want to risk an acquittal or hung jury in any of these cases. I'm not sure that's a good enough justification for keeping these cases out of federal court.

Stay tuned -- oral argument is scheduled in Al-Odah v. United States for Tuesday, April 20th, before the Supreme Court. Oral argument in Hamdi v. Rumsfeld and Padilla v. Rumsfeld is scheduled for Wednesday, April 28th. Each of these cases has the potential to radically change the landscape of the law with respect to terrorism, national security and civil liberties.

For more background on the Al-Odah and Rasul cases (consolidated for argument), see this note by the lawyers at SCOTUSBlog, complete with links to the lower court decisions and briefs in the case. Also see this Slate essay by WP Supreme Court reporter Charles Lane on how the issues may be framed in the case.

More to follow...
The next big political book

New Bob Woodward book on Iraq war policy about to hit the street;
White House goes to the mattresses to ready its p.r. counter-offensive

In case you've missed the p.r. blitz so far, Bob Woodward's new book "Plan of Attack" is about to be released, and it's full of startling revelations about who knew what in the Bush White House as the nation marched to war. Like other Woodward books, the truth is mostly a function of access -- those who gave Mr. Woodward access are likely to be rewarded; those who did not will either be punished or left out. Notwithstanding that fact, Mr. Woodward was able to pick up some extremely interesting facts during his stint as a fly on the wall of the White House, including this passage as reported by the Washington Post:
By early January, 2003, Bush had made up his mind to take military action against Iraq, according to the book. But Bush was so concerned that the government of his closest ally, British Prime Minister Tony Blair, might fall because of his support for Bush that he delayed the war's start until March 19 here--March 20 in Iraq--because Blair asked him to seek a second resolution from the United Nations. Bush later gave Blair the option of withholding British troops from combat, which Blair rejected.

Woodward describes a relationship between Cheney and Secretary of State Colin L. Powell -- never close despite years of working together -- that became so strained that Cheney and Powell are barely on speaking terms. Cheney engaged in a bitter and eventually winning struggle over Iraq with Powell, an opponent of war who believed Cheney was obsessed with trying to establish a connection between Iraq and the al Qaeda terrorist network and treated ambiguous intelligence as fact.

Powell felt Cheney and his allies -- his chief aide, Lewis "Scooter" Libby, deputy defense secretary Paul Wolfowitz and undersecretary of defense for policy Douglas Feith and what Powell called Feith's "Gestapo" office -- had established what amounted to a separate government. The vice president, for his part, believed Powell was mainly concerned with his own popularity and told friends at a private dinner he hosted a year ago to celebrate the outcome of the war that Powell was a problem and "always had major reservations about what we were trying to do."

Before the war with Iraq, Powell bluntly told Bush that if he sent U.S. troops there "you're going to be owning this place." Powell and his deputy and closest friend, Richard L. Armitage, used to refer to what they called "the Pottery Barn rule" on Iraq -- "you break it, you own it," according to Woodward.

But, when asked personally by the president, Powell agreed to present the U.S. case against Hussein at the United Nations in February, 2003 -- a presentation described by White House communications director Dan Bartlett as "the Powell buy-in." Bush wanted someone with Powell's credibility to present the evidence that Hussein possessed weapons of mass destruction -- a case the president had initially found less than convincing when presented to him by CIA deputy director John McLaughlin at a White House meeting on December 21, 2002.

McLaughlin's version used communications intercepts, satellite photos, diagrams and other intelligence. "Nice try," Bush said when he was finished, according to the book. "I don't think this quite -- it's not something that Joe Public would understand or would gain a lot of confidence from."

He then turned to Tenet, McLaughlin's boss and said, "I've been told all this intelligence about having WMD and this is the best we've got?"

"It's a slam dunk case," Tenet replied, throwing his arms in the air. Bush pressed him again. "George, how confident are you."

"Don't worry, it's a slam dunk," Tenet repeated.
I've already ordered my copy... I guess law school studying will have to wait.
Stop the Bleating moves to new home
: The latest blog to move from Blogspot is the one run by my libertarian friends in Virginia, Stop the Bleating. Nice new look.
Two old warriors with a bone to pick
: Comments from retired Gen. Anthony Zinni in the SD Union-Tribune and Sen. John McCain on Larry King Live indicate some amount of displeasure within America's defense establishment towards current White House policy in Iraq. Zinni's a moderate with ties to politicians on both sides of the aisle; McCain is an unabashed Republican. But both guys are calling it like they see it, and the calls aren't pretty. Sen McCain's comments sure make me wish the 2000 GOP primary had come out differently... at least I cast my vote for the right guy.
Thoughts on Iraq
: I'm honored to be featured in the new edition of the Boston Phoenix in a discussion feature with 8 other people on the question of "Where do we go from here?" in Iraq. The panel puts forward some interesting thoughts, and I invite you to take a look.
Pentagon takes its lumps for 9/11

The LA Times reports this morning on criticism of the Pentagon for its part of the failure to prevent the 9/11 attacks. This is a storyline we've heard before, but it has taken on a new edge with Richard Clarke's book and its criticism of military officials for doing too little in the late 1990s to fight Al Qaeda and other emerging threats. Most of the public's attention has focused thus far on problems with (and between) the CIA and FBI in the intelligence and law enforcement communities, but Josh Meyer writes that the Pentagon getting a big chunk of blame from the 9/11 Commission:
sources familiar with the commission's inner workings said the panel increasingly believes the Pentagon failed to adequately respond to the growing military threat of Al Qaeda. They said Pentagon ineffectiveness in both the Clinton administration and the current Bush administration was as much to blame for permitting the Sept. 11 attacks as inept law enforcement and intelligence efforts, a conclusion shared by many current and former U.S. officials and counter-terrorism experts.

When the commission releases its findings in late July, it is expected to conclude that both administrations failed on a wide array of military fronts, not just in the use of conventional force but in the sharing of intelligence and creation of special operations and technology to respond to the new threat posed by stateless terrorism.

Outright military action against terrorists would have to be ordered by the president. But critics fault military leaders for discouraging such actions and failing to present alternatives.

In private, the commission also is raising questions about the Defense Department's apparent lack of readiness on Sept. 11 to protect Americans from a military-style attack on the homeland.

On that day, a hijacked commercial jetliner was able to crash into the Pentagon building, despite months of elevated indications of an Al Qaeda attack and long-standing criticism that the military lacked a domestic security plan, the sources said.

Since the Sept. 11 attacks, senior Pentagon officials in the Clinton and Bush administrations have defended their counter-terrorism efforts, saying they were hamstrung by a lack of "actionable" intelligence from the CIA, indecision by political leaders in the White House and Congress and reluctance by policymakers to spend money and take risks associated with a military response to Al Qaeda.

Commissioner Bob Kerrey, a former Democratic senator and decorated Navy veteran, said he could not comment on unpublicized commission findings. But he confirmed that the investigation to date has raised serious concerns about the Pentagon's pre-Sept. 11 counter-terrorism efforts, including its inability to carve out a substantial role for itself even after terrorists killed 36 military personnel in bombings of a military housing complex in Saudi Arabia in 1996 and a Navy warship, the Cole, in 2000.

"How come the Department of Defense didn't have a primary role?" Kerrey asked in an interview Thursday. "I'm guessing they didn't want it, that they said, 'We don't do terrorism.' "
Analysis: That's it, in a nutshell. It may call itself the Department of Defense, but the Pentagon really sees itself as the Department of Offense. It didn't used to be this way, of course. During the Cold War, the Pentagon poured resources into defensive programs like NORAD and the civil-defense system. But since the end of the Cold War, the Pentagon has adopted a near-exclusive focus on threats abroad, and devoted nearly nothing to domestic security efforts. Ask any senior military official or Pentagon official and they'll tell you that the Pentagon plays the away game, while the Justice Department and state/local agencies play the home game. The only time this changes is when Congress steps in to give the military specific direction to do something domestically, e.g. counter-drug exceptions to the Posse Comitatus Act or authority to run the National Guard WMD-Civil Support Teams.

On balance, I suppose it's probably a good thing to have the military so focused on the away game. As a civil liberties matter, we don't want our military getting too involved in the domestic intelligence or law enforcement area. (See Laird v. Tatum for an example of when they did this.) And as a strategic matter, we probably want to identify, interdict and fight threats overseas before they come to our shores, so it makes some sense to focus our military abroad. Nonetheless, as a conceptual matter, we have a Department of Defense to protect the national security of the United States, and it seems somewhat odd that this department would play such a minimal role in domestic security operations. Especially when you consider that (1) more than half of the intelligence community agencies fall under DoD; (2) the bulk of the U.S. capability for chemical, biological, nuclear and radiological events resides in DoD; and (3) DoD agencies are leading the hunt for terrorists abroad, as well as the interrogations of captured terrorists, so they may have a lot of valuable information for the domestic anti-terrorism fight.

What's the right balance?
White House mulls intelligence community reorganization

A good idea to make America more secure -- or another worthless government reorg?

Friday's New York Times breaks the story that the Bush White House may be ready to put forward a proposal to radically restructure the American intelligence community. Among other things, the proposal would create a Director for National Intelligence with authority over the many disparate American intelligence agencies. Such a plan might preempt some of the eventual findings and recommendations of the 9/11 Commission, and rebut criticism that the White House has done too little to fix the intelligence community failures that occurred before 9/11.
Under the proposal, management of the government's 15 intelligence agencies, and control of their budgets, would be put under the direction of a single person. That authority is now scattered across a number of departments and agencies.

The plan, drafted more than a year ago by a presidential advisory panel headed by Brent Scowcroft, the former national security adviser, was given little White House attention until now. It is being reviewed, the officials said, as a possible answer to the Sept. 11 commission's preliminary conclusion that the current organization of the government's intelligence agencies has left no one truly in charge on intelligence matters.

* * *
Administration officials declined to discuss the proposal by Mr. Scowcroft's panel on the ground that it was still classified. But they suggested that discussion inside the White House included extensive consideration of that plan, designed to install a more powerful and centralized overseer to take charge of an ad hoc system created in haste after World War II.

Also being discussed within the White House, the officials said, were possible changes within the F.B.I., including the creation of a new directorate within the bureau responsible for domestic intelligence-gathering and analysis. The alternative of creating a new domestic intelligence agency was also being discussed but was seen as less likely to be embraced, the officials said.

It is not known whether F.B.I. intelligence gathering would be under the control of the proposed new director of intelligence.
Analysis: So... have a Director of Central Intelligence, who by statute is supposed to be the principal intelligence officer for the United States. Yet, because the structure isn't working, we're going to create a new Director of National Intelligence and attempt to reform bureaucratic morass with... more bureaucracy? I understand the impulse to do something in response to 9/11, and to fix the problems that impeded our intelligence community from connecting the dots about Al Qaeda. It may well be that we need to fix intelligence by creating a more responsive and efficient command and control structure for America's intelligence community. But I'm not convinced that this is the answer, because I see two major pitfalls in this proposal: (1) It threatens to create more bureaucracy, gumming up the system more; (2) It focuses too much at the top level rather than creating interconnectedness and collaborate relationships at the operator level, where the need is greatest.

Operationally speaking, I think the last thing we need to do is impose more bureaucracy on the intelligence community and the intelligence process generally. Conceptually, we can visualize our national security process and the decision processes of our enemies as giant O-O-D-A loops, which stands for "Observe-Orient-Decide-Act". Col. John Boyd's work showed that in a variety of competitive settings -- at the tactical, operational and strategic levels -- the actor with the most efficient OODA loop tended to win regardless of other variables such as equipment or size. Agility of the mind -- and by extrapolation, of the organization -- counts for more in battle than shear numbers or brute strength. Applied to this situation, one can see the problem with more bureaucracy. More bureaucracy means slower decisionmaking; more layers of review; more oversight; more red tape -- ultimately, a less efficient OODA loop. Operationally, it means more time from the acquisition of information to the decision by the President to the action in the field that uses that information. And in a world where hours can make the difference between catching Osama and hitting an empty cave, that makes a big difference.

Theorists at RAND and the Naval Postgraduate School have looked at this problem, and come up with some good ideas. Their basic premise is that "it takes a network to fight a network." Al Qaeda, more so in its current form than three years ago, exists as a global terror network. It is not organized hierarchically or like conventional organizations such as drug-supply chains or even the small terror cells of the last few decades. Today's global terror network organizes in virtual, non-contiguous, non-hierarchical ways which are highly survivable, very adaptive, and extremely difficult to break. A good analogy is to the Internet -- an interwoven network of nodes and hubs and sites and users who interact in a variety of ways; others have analogized Al Qaeda to a galaxy or constellation of ideologically similar terrorists. Regardless of which analogy you pick, the point is the same. You cannot fight this type of enemy effectively with a conventional hierarchical bureaucracy. You will forever find yourself out-witted and two steps behind the threat; a prisoner of your own OODA loop and your own inflexibility. Yet, that is precisely what this new White House plan envisions.

So what should be done to fix intelligence? A lot of things, to be sure. But not something so sweeping as this that promises little in the way of net gains. Here are a few ideas that have been kicked around in the security community that can be done today, with far less political and bureaucratic effort:

(1) Build a robust intelligence information architecture. Janet Reno, Louis Freeh, Robert Mueller and John Ashcroft all agree -- the DOJ/FBI information architecture is horrible. It goes without saying that there is no tie-in between this system and the intelligence systems of the CIA, NSA, or any of the other interested agencies. And there's certainly no vertical links between federal and state/local intelligence efforts. Remember that local cops are as likely to find indicators of terrorism activity as national-level investigators -- perhaps more so -- so it's critical to have that tie-in. A seamless, efficient, compartmentalized, secure information architecture for America's security community would be invaluable to the anti-terrorism effort, and it would probably do more than any other measure to make our OODA loop more efficient. It would also provide the linkages to transform the disparate, disconnected, dysfunctional American law enforcement landscape into something approaching a network, which would be exactly what we need to fight Al Qaeda.

(2) Establish real priorities for the intelligence community. This point goes to what Amy Zegart wrote a while back for Mark Kleiman's weblog. If you fail to establish priorities for intelligence work, you will collect a lot of stuff but nothing in enough depth to do meaningful analysis. Since the end of the Cold War, the American intelligence community has lacked a sense of priorities, and indeed has been given too many to be effective.

(3) Develop new interagency network models to fight terrorism. There may need to be some reorganization of government to make our agencies more effective in the fight against terror. However, such a reorganization ought to incorporate our operational understanding of this enemy, and it ought to look very different from the reorg being floated in this NYT story. There are models in existence at the local level around the country of interagency cooperation, and we would do well to scale those up to the federal level. The Terrorism Early Warning Group model and the Joint Terrorism Task Force model both serve as excellent examples of how many different agencies can come together to do indications and warning, net assessment, operational planning and consequences management planning. Innovative standing organizations like these can often work better than formal agencies, because they're not saddled with a lot of the bureaucracy attendant in formal agencies. We should consider a model like this for the federal level, because as the RAND experts write, "it takes a network to fight a network."

What's the right answer here? Probably some combination of all of this stuff. Some amount of coordination at the top level is necessary to ensure that intelligence community budgets, collection efforts, and analysis programs are all playing off the same sheet of music. A lot of investment is also necessary in the lower levels of this community, particularly on the domstic side where intelligence capabilities in the FBI and INS and USCG and other domestically oriented agencies have been neglected for far too long. The thing is, we have an active, adaptive, dangerous enemy out there who's just waiting for us to drop our defenses. We can't afford the learning curve associated with a typical government reorganization, but that will cause a net decrease in America's security for the near term -- an operational window that Al Qaeda might use to strike. If we do this, we absolutely positively have to get it right the first time.

Thursday, April 15, 2004

President takes a jog with wounded soldier
: For a staff sergeant in the U.S. Army, a chance to jog around the White House with any President would be an amazing experience. After all, he is the Commander-in-Chief of the armed forces, and that means something to soldiers regardless of political affiliation. It must have been even more special for Army National Guard SSG Michael McNaughton, who lost a leg to a landmine in Afghanistan last year. Pres. Bush visited SSG McNaughton at Walter Reed Army Medical Center in Jan. 2003, where the sergeant challenged the president to a run when he healed from his wounds. Yesterday, the president kept his word to the sergeant, and the two enjoyed a short jog on the White House grounds together.

It's a small gesture, and depending on your political outlook, it may mean very little at all. But it still struck me as a very classy thing to do. The president's promise motivated this soldier to get better, to the point where he is now able to run with a prosthetic leg. I don't think you can measure how much that mean to this sergeant and his family, or to veterans who appreciate what little gestures like this mean.
Digital dog tags
: Check out Noah Shachtman's interesting article in today's New York Times on the new technologies being fielded to soldiers which will aid battlefield identification and hopefully reduce fratricide.
Gitmo chaplain case goes away

The LA Times and CNN report that Chaplain (CPT) James Yee has successfully gotten his non-judicial punishment overturned for various minor charges that arose out of his investigation for espionage committed at Guantanamo Bay. The charges included adultery, mishandling classified information, and downloading porn to a government computer. The prosecution began to fall apart after CPT Yee's lawyer contested the classification of the information at issue, and the case quickly became a comedy of errors. CPT Yee's 2-star commander at Gitmo gave him an Art. 15 for his actions, but CPT Yee appealed that reprimand to his 4-star commander -- and won.
Army Gen. James T. Hill, head of the Miami-based U.S. Southern Command, overturned on appeal the nonjudicial conviction and written reprimand handed down March 22 to Capt. James Joseph Yee. The decision marked the apparent end to a high-profile case in which critics accused the military of overzealousness and anti-Muslim fervor in its pursuit of the Bush administration's war on terrorism.

* * *
Fidell contended that Army Maj. Gen. Geoffrey D. Miller, then the commander of Joint Task Force Guantanamo, "erred gravely in putting Chaplain Yee in confinement, but he continued the error for an unconscionable period of time.... It's disturbing and there's a sense in which I'm afraid the Army, or at least this part of the Army, still doesn't get it."

Fidell has compared the case to the prosecution of Wen Ho Lee, who was indicted in 1999 for allegedly mishandling classified information at the Los Alamos National Laboratory.

Fidell said he hoped another commander, perhaps higher up the chain of command, would apologize for what he described as a zealous and unnecessarily embarrassing prosecution. Yee and his wife were compelled to watch in court as a woman, described as Yee's mistress, gave intimate details of her alleged affair with the chaplain.

No reprimand will appear on Yee's record, but Fidell said his client's future in the military was unclear.
Analysis: Clearly, CPT Yee has Mr. Fidell's expert advocacy to thank for this outcome, as well as a bunch of bad publicity for the Army that came out of this case. Mr. Fidell is the Mark Geragos of the military law community, and he was able to convince the powers that be that it was in the best interest of the Army to dismiss this case altogether. It may look like a no-brainer to the outside world, but to me, this is actually a surprising outcome. For a commissioned officer like CPT Yee, adultery and mishandling classified information are serious charges. I'm surprised that the Army dismissed those, notwithstanding any larger p.r. issues involved, because of the way such a dismissal will look to enlisted soldiers and other officers. It will look to the average soldier like CPT Yee purchased justice, and that if you make a big enough stink in the media, you can get your way. I'm not so sure that's conducive to good order and discipline.

Where does CPT Yee go from here? He will likely request release from active duty, since he's unlikely to have a good career in the military after this case. Regardless of his acquittal, he will be known as the chaplain who committed adultery and bungled classified information at Guantanamo Bay. That's bad enough for any commissioned officer -- it's really bad for a military chaplain, who's supposed to be beyond moral reproach. The Army will likely grant his request, and then he will be honorably discharged.
One hell of a fight

Battles rage in Fallujah and on the highways of Iraq

Pamela Constable, who's embedded with the Marines in Fallujah, has a gripping report in the Washington Post cobbled together from after-action interviews with Marines who fought their way into the city to recover their buddies who had been ambushed and surrounded by Iraqi insurgents. The scenario sounds remarkably similar to what Mark Bowden described in his history of the Battle of Bakara Market, where Somali insurgents surrounded a company of Rangers and accompanying Delta operators. However, the outcome this time was quite different.
FALLUJAH, Iraq, April 14 -- It began as a routine supply mission to the front lines, in a volatile but largely becalmed city.

It ended as a fiery and chaotic rescue mission, with a small force of Marine tanks, Humvees and ground troops surrounded and attacked as they fought their way through a hostile neighborhood to save the crew of a burning armored personnel carrier.

Marine officials said the three-hour battle that erupted at dusk Tuesday on the streets of Fallujah, and was recounted Wednesday by several of the key officers involved, exemplified the bravery and resourcefulness that Marines are known for, even when surprised and surrounded by a host of enemy fighters on alien urban turf. By the end of the tumultuous encounter, the charred personnel carrier had been towed to safety by a tank and most of its 17 crew members -- several of them wounded -- had been rescued from a house where they had taken shelter.

But the incident also revealed some startling facts about the insurgency that the Marines are facing here, officers said. More dramatically than any armed confrontation since U.S. forces surrounded Fallujah nine days ago, it showed the tenacity, coordination, firepower and surprisingly large numbers of anti-American guerrillas who still dominate much of the city.

"We definitely stumbled into a wasps' nest. They were definitely a lot more organized than we thought," said Capt. Jason Smith, 30, commander of the company whose armored supply vehicle made a wrong turn into insurgent territory and was immediately inundated by gunfire and rocket-propelled grenades from all sides.
Read the rest...

And speaking of fights: My read of this story by Tom Ricks, the Post's veteran Pentagon reporter, is that he was actually in this convoy when it was ambushed. (Also see this Ricks article from yesterday on the increasing sophistication of Iraqi attacks.) It too makes for gripping reading, and it illustrates some of the problems the Army is having with the security of highways in Iraq. Ricks' article makes it clear just how difficult it is to get convoys through this route without being attacked -- even with armed HMMWVs and Bradleys for escorts.
In the biggest Army operation in central Iraq since last spring's invasion, dozens of convoys made up of hundreds of tanks and trucks moved into an area where Shiite Muslim militias had battled with occupation troops several times this month. Along the way, nearly every convoy was fired on, weary soldiers said afterward. Iraqi insurgents blew up bridges on the convoy routes, doubling or tripling the duration of trips scheduled to take six to 12 hours. And the U.S. military operation in Iraq began to feel less like a troubled occupation and more like a small war.

For one convoy, the journey began just before midnight Sunday at the U.S. base outside Baqubah, northeast of Baghdad. Amyett, 23, a 1st Infantry Division scout in charge of a two-Humvee section that would make up the rear of the 44-vehicle convoy, assembled his men for a quick and intense briefing.

"There's a 99 percent chance we're going to get hit," said Amyett, from Searcy, Ark., sitting on the hood of a Humvee and facing a cluster of soldiers who stood around him in the dark. "If they shoot, kill them. Shoot them in the face."

* * *
At 2:19 a.m. on Monday, the convoy rolled out the front gate of the base near Baqubah. The parade comprised not just tanks, Humvees and Bradley Fighting Vehicles, but many of the more exotic parts of the U.S. Army inventory, such as the new Stryker armored vehicle, huge portable bridges and special trucks for carrying M1 Abrams tanks.
You cannot overstate the importance of roads to the security and rebuilding mission in Iraq. Simply put, the roads are the arteries of Iraq, and the nation will die without them. They allow food, water, commerce, labor, and security forces to flow around the country. They also provide insurgents with a chokepoint to use to target and prevent the flow of these things. Thus, the fight over Iraq's roads is a fight for whether the U.S. can deliver food, water, medical care, security and reconstruction to the people of Iraq. The roads of Iraq have been the insurgents' battleground of choice for the past year, because this terrain supports their tactics of choice: hit-and-run ambushes and command-detonated improvised explosive devices ("IEDs"). For the foreseeable future, it's certain that these roads will continue to serve as key terrain for the battle in Iraq.

What can the U.S. do to retake these roads? As an operational planner in 4ID, we wargamed these kinds of scenarios in planning and command exercises quite a bit. The conventional answer is to allocate forces to route security -- MPs or infantry or scouts -- who can patrol routes constantly to detect and interdict insurgent ambushes before they're set. Another option is to conduct counter-reconnaissance patrols of key terrain which observes and controls the roads -- high ground on either side of the road, for example. However, as simple as these measures are, they require forces to be pulled from some other mission, and that was always the difficult inherent in these solutions.

It's true that there are 125,000+ U.S. troops on the ground in Iraq. It's also true that if you add up all of the mission requirements, force-protection requirements, support requirements and other requirements, you quickly find these troops depleted. Especially when you consider that only a fraction of these are actual "trigger pullers" who can effectively do a mission like route security. If memory serves right, our planning factor was that it takes one MP company to patrol 90km of road in a semi-permissive corps rear area. Given the threat in Iraq, I might reduce that territory slightly or boost the force slightly. Gen. Abizaid has requested two additional brigade combat teams with which to secure his routes and conduct other counter-insurgency missions. The 1st Armored Division and 2nd Armored Cavalry Regiment have been held in-country for another few months. 2ACR is the ideal force for this kind of mission; its light cav MTOE and training are extremely well-suited to route reconnaissance and security. Before Iraq, that was probably a METL task for this unit. I think it's likely that we will use this unit and others to conduct running patrols of key routes in Iraq in order to get them all up to "amber" or "green" status.