Sunday, June 20, 2004

Tectonic plates on the move?
The lawyers at SCOTUSblog report that there are 16 cases still before the Supreme Court during this term, and they provide a link to the list of run-down of cases maintained by Northwestern University. Of course, my eyes are on Rasul v. Bush, Hamdi v. Rumsfeld and Padilla v. Rumsfeld -- the trio of terrorism cases. But there are some other big ones before the Court, especially in the area of Constitutional criminal procedure.

Look for the first batch of opinions tomorrow (Monday) at 10 a.m.. The next batch should be issued this Thursday, with the rest being handed down next week. I'll try to post some analysis when the cases are handed down. (I can rationalize it as bar exam study because Constitutional Law and Constitutional criminal procedure are two subjects on the California bar exam this July.)

Saturday, June 19, 2004

DOJ discloses request to use the most controversial PATRIOT Act section
Despite earlier DOJ statements to the contrary, use of the infamous "library search" provision has been requested at least once

Friday's Washington Post reported on a small disclosure by the Justice Department that has very big implications for the area of terrorism and the law. Earlier this year, Attorney General John Ashcroft kicked off a public relations campaign to sell the USA PATRIOT Act to the public, in the need to renew many of its provisions before its sunset clause kicked in. Towards that end, Mr. Ashcroft declassified a 2003 memo stating that the authority under Sec. 215 of the USA PATRIOT Act to secure a FISA warrant to obtain "any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism" had never been used by the Justice Department. This provision sparked outrage from civil liberties advocates and earned the nickname "the library search provision" because it would, theoretically, enable the DOJ to seize library records to learn what books an individual had been checked out. Now, the Post reports, DOJ has said that the FBI has requested authority to use this power on at least one occasion.
A one-paragraph memo — saying the FBI wanted to use the part of the law that allows investigators in terrorism and espionage cases easier access to people's business and library records — was in a stack of documents the government has released under court order, as debate persists over whether use of the anti-terrorism law violates civil liberties.

The 383 pages of documents, many with names and other information blacked out, are the first results of a Freedom of Information Act request and lawsuit filed against the Justice Department by a coalition of civil rights groups. Last month, Ellen Segal Huvelle, a federal appeals court judge for the District, ordered the agency to release certain documents indicating how the FBI is carrying out the law. She denied the government's request to withhold such information for another year.

* * *
The memo involves the provision at the core of that political debate. Until last September, Ashcroft had insisted that the government could not disclose how many times investigators had used the part of the law that allows his agency to get approval from an obscure secret body, the Foreign Intelligence Surveillance Act (FISA) court, which requires less proof than other courts to authorize wiretaps and other surveillance. Ashcroft had repeatedly said that information was classified. But last September, he unexpectedly declassified a memo saying that the provision had never been used.

The newly disclosed memo, dated Oct. 15, shows that an office of the FBI had asked an office at Justice to ask the FISA court to approve a search. The memo does not indicate the nature of the search, whether Justice ever asked the court and — if so — whether the court granted the request.
Analysis: Let's set aside the merits of the issue for a moment. What we have here is the selective declassification of documents for political purposes — something which I'm sure is at odds with the federal government's own classification guidelines. I can't think of a good reason why the Justice Department would declassify the first memo and not the second — or at least release an abstract of the second memo stating the important fact that this FISA power under Sec. 215 had been used. I fully understand the need to keep FISA warrants secret, so as not to tip off the target and affect the ongoing investigation. But we're not talking about the particulars of these warrants — we're talking about the facts relevant to the policy debate over FISA warrants and the USA PATRIOT Act. The fact that this power has been used is highly relevant to that debate, and DOJ basically lied to us by withholding the facts of the second memo.'

In response to this charge, DOJ spokesman Mark Corallo responded with the characteristic verbal precision you'd expect from a department of lawyers:
Corallo said that in Ashcroft's September memo saying the provision had never been used, the attorney general was "not only . . . being technically accurate. He was being completely accurate."
Uh huh. Right. Tell it to Congress, Mr. Ashcroft. Somehow, I think they're going to be quite upset at the fact that this information was withheld, and that the means of doing so was the classification process. Congress has been quite willing to go along with the Justice Department and to give it new and broad authorities in the anti-terrorism arena. But I think that willingness depends in part on some measure of trust that DOJ will do the right thing with those authorities once granted. This behavior does not help DOJ maintain that trust. With the renewal of certain PATRIOT Act provisions on the line this year, including Sec. 215, I imagine that a little more transparency might be useful if DOJ wants to continue receiving Congressional support.
SAFETY from litigation
Homeland Security Dept. certifies companies producing anti-terrorism technologies, enabling them to manage their risk of litigation under federal law

The Washington Post reported on Friday on an interesting move by the Department of Homeland Security to certify four companies' products as within the scope of the Homeland Security Act's liability protection. Sections 861-865 of the Homeland Security Act of 2002, colloquially known as the "SAFETY" (Support Anti-terrorism by Fostering Effective Technologies Act) Act, protects companies from litigation resulting from the use of certain anti-terrorism technologies (broadly defined) when those systems have been blessed by the Department. According to the Post, four companies have now received this protection:
Among those receiving the limited liability protection is Bethesda-based Lockheed Martin Corp.'s risk assessment platform, the computer system at the heart of the aviation screening program called CAPPS II. It is designed to use public records and intelligence to determine whether an individual poses a security threat. The other companies produce explosive-detection systems, biohazard sensors and devices designed to neutralize explosive devices.

Homeland Security officials consider the liability protection crucial in spurring development of new technologies to protect the nation. The authority comes from a law approved in 2002 called Support Anti-Terrorism by Fostering Effective Technologies (SAFETY) Act, which was included in the legislation that created the department.

* * *
Benefits for the makers of "qualified anti-terrorism technologies" include a prohibition on punitive damages, limits on payments to plaintiffs and limits on the amount that a business will pay for liability insurance coverage. The SAFETY Act says businesses should be able to obtain insurance at "prices and terms that will not unreasonably distort the sales price" of their products.
Analysis: Like many provisions in the large omnibus anti-terrorism packages passed since 9/11, this one didn't get much substantive debate during the legislative process. Most political attention focused on the issue of civil service protections for DHS employees, and various civil liberties issues raised in the Homeland Security Act. Nonetheless, I think this subsection of the Act is one of the most important, and thus I mark this report as a significant development in the world of anti-terrorism and the law.

First, I say that because this law represents a substantial broadening of the government's power to exempt certain companies from the risk of litigation. Government contractors already have such a defense to litigation, known as the "government contractor defense", where they can be excused from liability for the malperformance of a product if it met government specs. The language of Sec. 863 (the core of the SAFETY Act) is quite broad, and includes among other things:
- "There shall exist a Federal cause of action for claims arising out of, relating to, or resulting from an act of terrorism when qualified anti-terrorism technologies have been deployed." This allows plaintiffs injured by terrorist acts to sue companies where anti-terrorism systems have been deployed, but as we'll see, it's a very limited right.

- "Such Federal cause of action shall be brought only for claims for injuries that are proximately caused by sellers that provide qualified anti-terrorism technology to Federal and non-Federal government customers." The lawsuit can only address injuries which result from the anti-terrorism technology's use, not the terrorist act itself. Thus, a barrier maker can be responsible for injuries sustained because of the barrier, but not because of a bomb. (a very simplistic example)

- "No punitive damages intended ... may be awarded". This is huge, because it eliminates one of the major risks of litigation for corporate defendants and allows corporate executives to calculate litigation risk much more accurately. It also takes away a major bargaining chip of the plaintiff. In cases where there might be egregious conduct by the defendant-corporation, it may deprive the plaintiff of a remedy that he/she would normally have. There are other damages provisions which also substantially reduce the risk of a big payout for corporate defendants in the Act, particularly in the area of non-economic damages (i.e. damages for losses for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium).

- "Any recovery by a plaintiff in an action under this section shall be reduced by the amount of collateral source compensation". Okay, so I'm intrigued by this part because I just covered Torts in my bar review class. But this is very significant, because in most litigation the collateral source rule works exactly the opposite. That is, the defendant cannot take advantage of plaintiff's insurance by having the damages offset by the amount of insurance money. Again, this substantially reduces the potential liability of a corporate defendant here, because many plaintiffs will have some kind of insurance (health, life or other) that will compensate them in any kind of terrorist attack.

- "Should a product liability or other lawsuit be filed ... there shall be a rebuttable presumption that the government contractor defense applies in such lawsuit. This presumption shall only be overcome by evidence showing that the Seller acted fraudulently or with willful misconduct in submitting information to the Secretary..." If the contractor's system was certified, and if the contractor complied with the specs of that certification, there can be no liability according to the "government contractor" defense.
Those are a few of the most important provisions in the SAFETY Act. There are also regulations implementing this Act which define these terms in more detail and explain exactly how it shoudl be applied. But for the most part, all we really need to know as citizens is that it gives extensive litigation immunity to companies that 1) get certified by DHS and 2) make an anti-terrorism system that 3) is deployed at the time/place of a terrorist attack.

Is this a good thing? In the majority of cases, I think that the SAFETY Act will be a very good thing. It has already spurred work among government contractors who want a piece of the sizable DHS budget, but who might otherwise not compete for DHS contracts because of the liability inherent in anti-terrorism work. It's still too early to tell, but I think that this provision will eventually play a role in bringing innovative and sophisticated anti-terrorism systems to market -- things like bio/chem agent detectors that would otherwise not be built for civilian use because of the liability issues involved. The risk here, in my opinion, is that DHS will not do its job. Just as many agencies are "captured" by their industrial constituences, there is a risk that DHS will be captured too. If that happens, then we should be worried about two things: the approval of worthless anti-terrorism technologies, and the approval of technologies that have nothing to do with anti-terrorism, but where the company wants to be excused from tort liability. For now, I think it's a good sign that DHS is certifying small numbers of contractors at a time.

Friday, June 18, 2004

Today's quote of the day comes from testimony to Congress. An internal Defense Department news story (basically a press release) reports this nugget from Comptroller General David Walker's testimony to the House Government Reform Committee:
"As has been the case for many decades," David M. Walker, comptroller general of the United States, observed, DoD earns an "'A-plus' (for) fighting and winning armed conflicts, but they're a 'D' on economy, efficiency, transparency and accountability" in managing contracts.
And in the understatement of the year, Mr. Walker continues:
Walker acknowledged that most troops serving in Iraq and Kuwait are satisfied with contractor-provided services. "But, I do think cost is important," he added.
The Comptroller General reports to Congress, and his primary job is to run the General Accounting Office. In theory (and usually in fact), the GAO facilitates Congressional oversight of government contracts through auditing and by working with the various defense auditing agencies to ensure that everything adds up. Recently, friends tell me this process has become strained, because of reticence within the Pentagon and on the part of some contractors to let auditing processes affect the way they conduct operations. Most contractors do a good job, and most account for taxpayer money according to federal laws and regulations. But not all do, and it's wrong to let a few line their pockets with taxpayer money — money that could go to new body armor, improved training, or other critical things.

Finally, let's not forget that this is our money. Congress has a Constitutional obligation "To raise and support Armies...". That power, coupled with Congress' spending power, gives it the implied power of oversight. The system only works, however, when Congress makes it work. To make that happen, we have to let our representatives know that this issue matters to us. Why? Because if Congress doesn't exercise meaningful oversight over DoD's spending of taxpayer money, no one will.

Thursday, June 17, 2004

DOJ leans forward in its foxhole to prosecute CIA contractor
The AP, New York Times and Los Angeles Times have reports on the indictment of CIA contractor David Passaro for four counts of assault which contributed to the death of a CIA detainee in Afghanistan. The story is itself interesting, because it marks the first time that the Justice Department has done anything to prosecute individuals associated with American prisoner abuses abroad in the context of the war on terrorism. (See "Hired Guns" and this Slate explainer for more background on the subject of disciplining private contractors in Iraq.) Here's an excerpt from the LA Times report:
David A. Passaro is accused of "brutally'' beating Abdul Wali over two days of questioning on June 19 and 20, 2003, after the Afghani surrendered at the front gate of the Asadabad military base in Kunar province in the mountainous region of northeastern Afghanistan, Atty. Gen. John Ashcroft told reporters in Washington.

That is the region where U.S. troops have fought pitched battles and searched for Al Qaeda mastermind Osama bin Laden, Ashcroft said.

Wali, suspected of aiding in rocket attacks against the base, was found dead in his cell on June 21.

Passaro was arrested in North Carolina after a federal grand jury in the Eastern District of the state indicted him today. He faces up to 40 years in prison and a $1-million fine if convicted on two counts of assault with a dangerous weapon - the flashlight - and two counts of assault resulting in serious bodily injury.

Justice officials did not disclose Passaro's employer, but a U.S. official described him as a self-employed independent contractor from Lillington, N.C.

Asked why Passaro, 38, was not charged with murder or with torturing Wali, Ashcroft indicated that the investigation had not yielded strong enough evidence to justify such charges.
At Intel Dump, we believe in bringing you (the reader) primary sources whenever possible. With very little effort tonight, I was able to locate the Justice Department press release announcing this indictment by the U.S. Attorney for the Eastern District of North Carolina. The release contains most of the usual mumbo-jumbo you'd expect from a chief law enforcement officer about how justice will be done, yadda yadda yadda. (Update: the actual indictment is now available at Findlaw.Com.) But near the end of the release, we're treated to this nugget of law that made me literally stop reading:
U.S. Attorney Frank Whitney added, "Once again we see evidence that the USA PATRIOT Act is a valuable tool for law enforcement. Not only is it vital to investigating and prosecuting terrorists, but also it is instrumental in protecting the civil liberties of those on U.S. military installations and diplomatic missions overseas, regardless of their nationality."

The USA PATRIOT Act of 2001 gives the United States jurisdiction in the Passaro case. In the wake of Sept. 11, 2001, the PATRIOT Act expanded the law enforcement powers of the United States and eased the challenges of prosecuting crimes and terrorist attacks abroad. Section 804 of the Act, later codified as 18 USC Section 7(9), provides jurisdiction over crimes committed by or against any U.S. national on lands or facilities designated for use by the United States government, such as the Asadabad Base.
The USA PATRIOT Act??? I know Public Law 107-56 pretty well from putting together a casebook in this area, and from the class I taught on law and terrorism, but I didn't know abotu this provision (or remember it) until today. Of course, the Act is a large omnibus bill that includes a lot of stuff. Regardless, I did what any intrepid writer would do — I fact-checked the DOJ statement. Sure enough, Sec. 804 of the USA PATRIOT Act does exactly what Mr. Whitney says it does. It amends 18 U.S.C. 7, also known as the "special maritime and territorial jurisdiction" statute of federal criminal law, to include U.S. military bases and embassies outside of the U.S. Here's the relevant text of 18 U.S.C. 7:
Section 7. Special maritime and territorial jurisdiction of the United States defined

The term "special maritime and territorial jurisdiction of the United States", as used in this title, includes:

* * *
(9) With respect to offenses committed by or against a national of the United States as that term is used in section 101 of the Immigration and Nationality Act -
(A) the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership; and

(B) residences in foreign States and the land appurtenant or ancillary thereto, irrespective of ownership, used for purposes of those missions or entities or used by United States personnel assigned to those missions or entities. Nothing in this paragraph shall be deemed to supersede any treaty or international agreement with which this paragraph conflicts.
This paragraph does not apply with respect to an offense committed by a person described in section 3261(a) of this title.
My quick-and-dirty statutory analysis says that 18 U.S.C. 7 does indeed apply to the acts of the CIA contractor in question, bringing his acts squarely within the jurisdiction of federal criminal law. There really isn't much wiggle room in this statutory language. Even if I apply the sophistry I learned in law school, I can't parse this language to form a viable argument on Mr. Passaro's behalf. The best argument his defense can make is that the site in question was not a formal "premise" of a U.S. military mission, like Bagram Air Base or Guantanamo Bay. But I think that argument will fail in federal court.

Interestingly, the statute cited at the end of 18 U.S.C. 7 was passed as part of the Military Extraterritorial Jurisdiction Act of 2000 ("MEJA"). It extends federal criminal jurisdiction to Defense Department contractors only when operating with U.S. forces abroad — but not to contractors from other agencies, or U.S. civilians generally who are working on military and diplomatic missions. This is a gaping lacuna in the MEJA, because it excuses lots of people from criminal liability, such as the Abu Ghraib contractors who were actually on an Interior Department contract but seconded over to the Army. So, MEJA is a lot less valuable than a lot of people would like. But we shouldn't despair, because it looks like this other provision of federal law can cure the defects in MEJA by covering a lot of people who would otherwise be untouchable under MEJA.

What are the implications of this? The most obvious is that it extends federal jurisdiction to all locations where we have troops today. Can you think of any other military bases where jurisdiction has become an issue lately? Where U.S. soldiers and civilian intelligence officials are alleged to have committed crimes? I can think of two: Abu Ghraib and Guantanamo Bay. Both should fall squarely within the coverage of 18 U.S.C. 7, subsection (9). With jurisdiction firmly established, there's really no reason why we shouldn't see more aggressive prosectorial action by the Justice Department with respect to abuses at these locations. To date, DOJ has said that it wasn't "rushing in" to charge anyone, and that it would cede primacy to military investigators and prosecutors. But now we know that DOJ has jurisdiction as a matter of federal law, and that they are willing to use this power. (FN: DOJ has also used MEJA once — in the prosecution of an Air Force dependent for a murder committed in Turkey. The case should go to trial in Los Angeles this summer.) Assuming the facts/evidence will support a charge, there's no procedural reason I can think of to prevent DOJ from charging others involved with prisoner abuses abroad. Thus, any delays at this point are not the result of law, but of prosectorial discretion.

Coda: Does anyone else see the terrific irony in this situation? Here we have Attorney General John Ashcroft, the administration's top lawyer, riding to the rescue to prosecute a case of abuse within the CIA which was arguably sanctioned by the administration's top lawyers in DOJ and DOD? Or, seen another way, here we have John Ashcroft, chief law enforcer and moral arbiter, riding to the sound of laws being broken and morals being discarded by U.S. troops and contractors abroad. Or, seen a third way, isn't this DOJ prosecution ironic given the fact that an Office of Legal Counsel memo purported to justify torture practices? Maybe I'm reading too much into this, but there are some really interesting internal politics at work here that I think we're just starting to see. I expect more pushback from other parts of the Bush administration in the near future, especially the attorneys at DOJ and State who are uncomfortable with where the administration has gone on the detainee issue.
Superior orders
The New York Times reports that Defense Secretary Donald Rumsfeld personally ordered the clandestine detention of an Iraqi tied to Ansar al-Islam in such a way so as not to let the Red Cross or anyone else know that he existed, and was in U.S. custody. Mr. Rumsfeld apparently did so at the request of CIA Director George Tenet. However, the order appears to have raised hackles at the lower levels of command. And, it has generated many new questions about the extent to which the SecDef and his top advisers personally knew of — or sanctioned — the events at Abu Ghraib.
This prisoner and other "ghost detainees" were hidden largely to prevent the International Committee of the Red Cross from monitoring their treatment, and to avoid disclosing their location to an enemy, officials said.

Maj. Gen. Antonio M. Taguba, the Army officer who in February investigated abuses at the Abu Ghraib prison, criticized the practice of allowing ghost detainees there and at other detention centers as "deceptive, contrary to Army doctrine, and in violation of international law."

This prisoner, who has not been named, is believed to be the first to have been kept off the books at the orders of Mr. Rumsfeld and Mr. Tenet. He was not held at Abu Ghraib, but at another prison, Camp Cropper, on the outskirts of Baghdad International Airport, officials said.

Pentagon and intelligence officials said the decision to hold the detainee without registering him - at least initially - was in keeping with the administration's legal opinion about the status of those viewed as an active threat in wartime.

* * *
In July 2003, the man suspected of being an Ansar al-Islam official was captured in Iraq and turned over to C.I.A. officials, who took him to an undisclosed location outside of Iraq for interrogation. By that fall, however, a C.I.A. legal analysis determined that because the detainee was deemed to be an Iraqi unlawful combatant - outside the protections of the Geneva Conventions - he should be transferred back to Iraq.

Mr. Tenet made his request to Mr. Rumsfeld - that the suspect be held but not listed - in October. The request was passed down the chain of command: to Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, then to Gen. John P. Abizaid, the commander of American forces in the Middle East, and finally to Lt. Gen. Ricardo S. Sanchez, the ground commander in Iraq. At each stage, lawyers reviewed the request and their bosses approved it.
Analysis: So, let's literally play devil's advocate here. Let's assume the role of a defense attorney for the MPs charged with criminal misconduct at Abu Ghraib. To fight those charges, we have to make what's known as an "affirmative defense" that our clients were ordered by their superiors to do what they did, and that those orders were lawful. The "superior orders" defense, as it is known, is a complete defense where the orders were lawful, and a mitigation defense where the orders were not lawful. This is because of the inherently coercive nature of the military where subordinates do not have great latitude to contradict orders.

As defense attorneys, we're dancing on our desks right now, because we now have another piece of evidence to bolster our "superior orders" defense. So far, we have our own clients' testimony, corroborated by that of their co-defendants, that they were ordered to do what they did. That is a factual matter, and will likely require the calling of certain officers and intelligence officials who gave these MPs orders. Next, we must establish the lawfulness of the orders. Towards that end, we now have at least three big pieces of evidence:

1. The now infamous Defense Department torture memo, first reported by the Wall Street Journal, which outlines ways around criminal prosecution should one of the low-ranking soldiers or spooks be prosecuted for their acts on the orders of higher command. As I wrote in Slate, this is "a cookbook on how to conduct illegal torture and get away with it."

2. The Justice Department memorandum to much the same effect, first reported by the Washington Post. Like the DoD memo, this one provides a litany of ways out of criminal liability, and is designed to provide legal cover for the actions of high-ranking officials and low-ranking subordinate alike. According to the WP:
If a government employee were to torture a suspect in captivity, "he would be doing so in order to prevent further attacks on the United States by the Al Qaeda terrorist network," said the memo, from the Justice Department's office of legal counsel, written in response to a CIA request for legal guidance. It added that arguments centering on "necessity and self-defense could provide justifications that would eliminate any criminal liability" later.
3. This latest report from the New York Times regarding "ghost detainees". If true, it establishes that orders to break the law came from as high as the Secretary of Defense. This story tends to corroborate Sy Hersh's reporting in the New Yorker about "Copper Green" — a special-access program for the interrogation of detainees controlled by the very top echelons of the Pentagon. These two stories lend a great deal of credence to the MPs' claims that their orders to abuse prisoners at Abu Ghraib came from very high in the Pentagon.

More importantly, these stories regarding legal memoranda and superior orders help us, the defense attorneys, establish the legality of the orders' lawfulness — at least in the soldiers' minds. Imagine you're a young Army Reserve MP serving at Abu Ghraib, and you get an order to beat up a naked detainee. Your instincts tell you that's wrong, so you question your sergeant, who questions his lieutenant, who questions her captain, who eventually gets in contact with a JAG officer. That JAG explains that these orders have already been vetted for their legality, by the most senior lawyers in the Pentagon and Justice Department. Thus, the soldier can be assured that these are, in fact, legal orders. Everyone gets constructive credit for asking the right questions, and the orders get carried out. But at no point does anyone engage in any real deliberative legal analysis about the actual legality of the orders. In effect, by producing these one-sided legal documents blessing torture, the Washington lawyers stamped the unlawful orders with their imprimatur, enabling lower-ranking officers to point to something as proof that the orders were legal.

Caveat: So far, what I've described is like a quadruple hearsay problem — and then some. There are all kinds of evidentiary reasons why this stuff may be kept out of court, both in the military trials about to begin and the federal criminal case brought today against a civilian contractor at Abu Ghraib. In addition to serious hearsay issues, you have so-called relevance issues, "best evidence" issues, and character evidence issues. Oh, and let's not forget the trump card: the "state secrets" privilege under FRE Rule 501, which has been invoked by the government to keep out evidence which might harm the national security if disclosed. [Note: the military rules of evidence and federal rules of evidence are nearly identical on these points.] So the defense team has an uphill struggle if it wants to use these memoranda and reports in its case. More to follow...
Beer bongs and keg stands in Baghdad?
The AP reports on the thriving bar scene which has developed behind the wall of American soldiers guarding the "Green Zone" — a.k.a. the fortress-like compound of the Coalition Provisional Authority. I had heard of this from friends who had gone to work for CPA before, but until now, never appreciated its scope. Here's how the AP describes the sector:
In a city where few people drink, Baghdad's sealed-off green zone counts at least seven bars, including a Thursday night disco, a sports bar, a British pub, a rooftop bar run by General Electric, and a bare-bones trailer-tavern operated by the contractor Bechtel.

* * *
The plushest tavern is the CIA's rattan furnished watering hole, known as the ''OGA bar.'' OGA stands for ''Other Government Agency,'' the CIA's low-key moniker.

The OGA bar has a dance floor with a revolving mirrored disco ball and a game room. It is open to outsiders by invitation only. Disgruntled CPA employees who haven't wangled invites complain that the CIA favors women guests.

* * *
One of the more interesting hangouts is the Green Zone Cafe, a tent erected in the parking lot of a former gas station. The cafe brings together a raucous mix of occupation personalities and others like reporters who don't carry government IDs.

On a typical evening, one can see U.S. soldiers smoking from 4-foot-tall hookahs and security contractors guffawing over beer, their machine guns by their sides. The CPA's would-be strategists can sometimes be seen in their ubiquitous military desert boots and dress shirts and slacks, playing Risk, the board game of global domination.

* * *
Worst off, perhaps, are the few thousand U.S. soldiers living in full view of the carousing. The Pentagon's General Order No. 1 prohibits U.S. troops from drinking, although soldiers say liquor is easy to come by especially in the green zone.
A couple of thoughts. As a new 2nd Lieutenant, I had an instructor at my officer basic course named CPT Lex Gaylord, who often said that two things will quickly get a young officer in trouble overseas: the bottle and the zipper. Here, it appears that we have the confluence of both. I can only imagine the disciplinary issues which have arisen because of these fine drinking establishments. Never mind, for a moment, the image this portrays to the Iraqis, particularly the more religious Iraqis with whom we're trying to build a new government. Just think of the disciplinary schism this sets up between the U.S. civilian employees in Iraq and the soldiers there, and what that means to PFC Joe Snuffy who's serving a 12-month combat tour in Iraq. Then think about the potential for all sorts of nuisance and petty crime (e.g. assault, drunken/disorderly conduct, sexual misconduct, etc.) that arises simply because of the introduction of alcohol into this environment. We don't have the time or the resources to deal with CPA employees and others who want to go to the desert to get drunk. That's what Las Vegas is for. Am I sympathetic to these guys at CPA? Sure. But I'm more worried about the effects of this permissive environment than the need for these guys to have a few beers to blow off steam.

Wednesday, June 16, 2004

Al Qaeda links to narcotrafficking on the rise
The Financial Times had an interesting report in Monday's paper about some drug seizures by the U.S. government in the Arabian Sea which have turned up links to parts of the Al Qaeda terror network. 10 of the 33 persons arrested in the past three weeks of seizures have ties to Al Qaeda, according to U.S. intelligence sources, and are now being held and interrogated at undisclosed locations in order to gather more information about the extent to which the terror network is working in the drug trade.
The Arabian Sea seizures indicate that the global infrastructure that links al-Qaeda's affiliates, sympathisers and Osama bin Laden's close circle, may be evolving into an organised crime network - or at least tapping into existing criminal activities.

Despite growing evidence of the links between terrorist cells and organised crime, law enforcers are still uncertain how to tackle this new aspect of the terrorist threat.

After the US-led war in Afghanistan overthrew the Taliban regime in late 2001, al-Qaeda was forced to scatter. The freezing of about $130m of alleged terrorist funds worldwide, and action to stop charities channelling donations to the terrorists, have forced activists to find their own incomes.

The great success of the war on terror has been in hindering al-Qaeda's access to these funds. By using the proceeds of crime, al-Qaeda can circumvent many of the formal financial measures now ranged against it.

The drugs trade is a key source of finance in al- Qaeda's central and south Asian heartland, partly because the export route from Afghanistan is well- established and accessible.
Analysis: One of Al Qaeda's key strengths as a terror network is its ability to move men, money and materiel around the world. That strength derives, in part, from Al Qaeda's wealth and financial networks, described well in Peter Bergen's book Holy War, Inc., and more recently by Douglas Farah in Blood From Stones. These networks originated with the wealth and business connections of Osama Bin Laden in the 1990s. But since then, Al Qaeda has diversified its financial networks and sources of money, developing charities and other means of procuring, moving and using money. Law enforcement experts have long predicted a convergence between Al Qaeda and the global drug trade, because of their common synergies with respect to evading law enforcement and moving stuff around the world. Thus far, it has been thought that Al Qaeda would disdain such endeavors because of its religious doctrine; that is, that its Islamist beliefs would preclude it from dabbling in the illicit drug trade. It is becoming increasingly clear that Al Qaeda has no such compunctions about using the drug trade to raise money for its terror operations, or for the purpose of masking its logistical efforts around the world.
Disposing of Saddam Hussein
The Washington Post reports this morning that the U.S. has plans to transfer legal custody of Saddam Hussein as soon as the Iraqi government asks for him. However, we may not transfer physical custody for a while, until the Iraqis are capable of holding this man in a secure-enough facility.
"If they ask for him, which I have every reason to believe they will . . . we'll turn him over," Bremer said. He added, however, that "legal custody and physical custody can be two separate things."

The interim prime minister, Ayad Allawi, has been discussing the handover of Hussein with U.S. occupation authorities, although it was not clear whether he was seeking physical as well as legal custody of Hussein and other imprisoned former Iraqi leaders. Allawi said Monday night that Hussein and his lieutenants should be transferred to Iraqi control in two weeks, after the country recovers formal sovereignty on June 30.

"We have specific promises on this from the coalition authority, and the negotiations are under way," Allawi told CNN on Tuesday.
Analysis: Of course, this is a pre-ordained result. Art. 118 of the 3rd Geneva Convention clearly states that "Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities." So it's not as if we have any discretion here -- we're obligated to turn him over to the Iraqis at the end of hostilities. Determining the precise date of handover might be a sticky issue in the absence of any formal end to the insurgency in Iraq, but it looks like the Iraqi government is going to make that easy for us by issuing an arrest warrant.

That raises the tougher issue, which I discussed last December in this Writ essay (also published by on the potential trial options for Mr. Hussein. Clearly, there are plans underway to try him. But in the wake of all that has happened, particularly at Abu Ghraib, it is now more important than ever to ensure that Mr. Hussein receives a fair and open trial. Perhaps more importantly, I think it's now more important than ever that Iraq establish some sort of Truth & Reconciliation Commission, to come to grips with the full panoply of horrors committed under Baath Party rule during the past 30 years. I think those two functions ought to be separate, so the Hussein trial can focus on being a criminal proceeding and the Truth Commission can focus on accounting for all that has happened. Trying to make the Hussein trial do both will make it an unbelievably complicated proceeding and one too difficult for any justice system to manage, let alone an infant one like the Iraqi tribunal planned for Mr. Hussein.

Tuesday, June 15, 2004

Rebutting Prof. Kmiec and the "king" theory of the presidency
Late last week, I wrote an article titled "Cooking Up Excuses With the Pentagon" for Slate in which I argued that the recent DoD memo to surface regarding the laws of war and enemy combatants was practically a cookbook for illegal conduct. In that article, I argued that the Bush administration lawyers (DOJ, DOD and White House) did a poor job of advising their client by writing such a one-sided legal memo, and that they basically got the law wrong to boot.

On Tuesday, Prof. Douglas Kmiec had a column on National Review Online which essentially met my argument head-on. Let me say first that I respect Prof. Kmiec a great deal, and know him indirectly through a couple of friends. He is an accomplished lawyer, noted Constitutional Law scholar, and a rare legal academic with relevant practical experience (he ran the Office of Legal Counsel during the Bush I administration). Nonetheless, I think he's flat wrong on this point, which is the crux of his argument:
Was it wise or prudent for the Justice and Defense Departments to contemplate the ultimate scope of the president's military powers? Yes. Otherwise, hesitation in the face of grave emergency might defeat capability. Of course, emphasis must be placed upon the qualifier of the contemplated power — a grave and extreme emergency — and admittedly, that could have been made more explicit in the drafting so that others coming to these documents later would not misconstrue the discussion as placing the president above the law. In remarks following the G8 summit, the president reaffirmed his commitment to the lawful and humane treatment of wartime detainees and personally restated his commitment to "take Care that the Laws be faithfully executed."

The "Laws" referred to in section 3, Article II of the Constitution include the Constitution itself, as these exploratory memos declare. It is an unexceptional canon of construction that treaty obligations and statutes are to be construed consistently with our foundational written charter. It may distress the president's adversaries — especially the enemy combatants and purveyors of terror worldwide — that the Supreme Court has faithfully held that "the President constitutionally invested with the entire charge of hostile operations" (Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 87 (1874)), but that is settled.
Wrong. This is a theory of Presidential power sometimes known as the "king" theory, wherein the Constitutional value of a unitary executive is seen as analogous to a specific grant of power and thus able to trump a statute or treaty where the two conflict. It is true that the Constitution trumps statutes, treaties and regulations; that was part of the holding in Marbury v. Madison. But Prof. Kmiec misstates this argument in furtherance of his "king" theory, using old law which has been basically repudiated, as I write in my Slate article:
Where the laws have spoken, they have generally said the president indeed lacks the legislative power to nullify a statute in this way. Article II, Section 3 of the Constitution grants the president the power to "recommend ... such Measures as he shall judge necessary and expedient," but this only confers the power to send legislation to Congress, like the annual budget. It does not, as president Truman found out in the famous Korean War case Youngstown Sheet & Tube Co. v. Sawyer, allow the president to unilaterally change or simply ignore the law. Similarly, the president cannot unilaterally set aside the Geneva Conventions. Once ratified by the Senate, such treaties become the law of the land. The president can no more set binding international agreements aside than he can set aside the federal open-meetings act or murder statutes.

To pre-empt this criticism, the Pentagon's lawyers point to the executive power of the president to act both as commander in chief of the military and as chief prosecutor. The memo contends that the sole discretion to prosecute wars and prosecute criminals lies with the president, and if the president wants to set aside laws (like the torture and war-crimes statute), he can do so by declining to prosecute them. On Page 24, the draft memo states:
Any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President. ... Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategy or tactical decisions on the battlefield.
It is true that the president enjoys primacy in the area of foreign affairs. But where criminal conduct and foreign policy intersect, the Constitution gives the other two branches a say too. Most obviously, Article I of the Constitution gives Congress the power to "make Rules for the Government and Regulation of the land and naval Forces" and to "define ... Offences against the Law of Nations." And according to the seminal case Marbury v. Madison, "It is emphatically the province and duty of the judicial department to say what the law is"—not the duty of Pentagon or Justice Department lawyers.
Who's right? Obviously, I think that I am. A quick lit review via Lexis indicates that my position is much closer to the consensus among legal scholars than that offered by Prof. Kmiec. The Youngstown case is regarded as the authority for defining the parameters of Presidential power. Hamilton v. Dillin, at best, is relegated to footnotes in present-day judicial decisions discussing the power of the President. Modern-day cases, such as the 1st Circuit's decision in Doe v. Bush (affirming President Bush's power to wage war in Iraq), generally ignore this case and this line of argument in favor of Justice Jackson's oft-cited concurrence from Youngstown. Even in the area of foreign affairs, the President does not have unchecked, unfettered, unreviewable power under Art. II of the Constitution. Congress and the courts play a role too, as outlined by Art. I and III of the Constitution respectively, despite what the lawyers who wrote this memo would like to argue.

But it doesn't really matter who's right — Prof. Kmiec or me — that's not the point. Good lawyers don't just state the law as most favorable to their client, and they don't give legal advice based on the way they'd like the law to be. Good legal advice looks at good and bad law (sometimes called positive and negative authority), and evaluates the prospective ways that a court might treat a given issue if presented it. The lawyers in this matter looked at the law in very facile, one-dimensional way, much like a first-year law student. It's as if they were handed a 1L crim law exam and told to assume the role of defense attorney, and to write every theoretical argument they could make to help their client beat a war crimes rap. Granted, some of these arguments actually hold water. But taken in sum, they do not provide good legal advice, because they do not enable the decisionmaker reading the memo to accurately judge the state of the law in order to make a well-reasoned and well-advised decision. As I wrote last week:
Of course, it's not the lawyers we should be worried about. The lawyers who drafted this memo face little risk of prosecution, and they're not the ones in harm's way. ...

The great moral hazard of bad legal advice is not that it will corrupt the lawyers offering it, but that it will engender criminal behavior by those who follow it in the belief that their lawyers are right.
Lance takes his fight to court
Lance Armstrong, the five-time winner of the Tour De France who made a miraculous recovery from testicular cancer several years ago, has taken a British author to court for libel according to Wednesday's New York Times. Despite his serious medical history, Lance has been the victim of doping charges for some time now. For the most part, he has responded with a characteristically Texan "Yeah, I've taken drugs -- it's called chemo you dirtbag!" to these charges in the past. But this time, Lance has retaliated with a libel case in British court. (Based on my limited understanding of UK libel law, it's easier for a public figure to establish libel there because British law does not have any of the U.S. Constitutional limitations on libel for public figures. But I'm certainly no expert on US -- let alone UK -- libel law, so I defer to the real experts on this one.)

As with all of his endeavors, I wish Lance good luck on this one. He's been a hero of mine for a long time, even before his bout with cancer. However this litigation turns out, I wish him the best of luck during this racing season, and I look forward to his sixth consecutive Tour De France victory this July.
Outsourcing problems
Peter Singer, an expert on private military contractors now in residence at the Brookings Institution, has a smartly written op-ed today in the New York Times on the recent hiring of Aegis Security Services for a security contract in Iraq. The op-ed is notable because it reports on a new contract that we haven't seen a lot of actual news reporting on — most op-eds just comment on the news, they don't report it. Mr. Singer also raises some important issues with respect to this contract, namely, that it presents many of the same oversight and fiscal issues raised by other government contracts in Iraq that have gone awry. I've written a lot on this subject already, so I won't restate those points here. But I think this op-ed raises some very important issues -- check it out.
Support the Writers of the Wall Street Journal
This week, according to the AP, the reporters of the Wall Street Journal plan to withhold their bylines from two days worth of stories to protest bad faith by the WSJ's management in stalled contract negotiations. Withholding bylines is a time-honored method of labor protest for newspaper reporters. A reporter's byline represents a reporter's personal brand -- a visible, personalized symbol of value which represents years of hard work and experience. I like to think of it as analogous to a trademark or service mark. According to the AP story, this labor tactic has never been used by WSJ reporters in the paper's history. Such is the low state of labor relations between management and the union at the Journal today.

As a show of solidarity with my friends who write for the Journal, I will not link to any stories in that paper for the remainder of this week. This is mostly symbolic; my action will affect WSJ e-traffic in the smallest and most marginal of ways. But as a WSJ subscriber, I care about the treatment of WSJ reporters, because I fundamentally believe that quality labor practices translate into better news coverage from employees who feel like they're being taken care of. I encourage my readers, and my colleagues who run weblogs, to follow my lead by honoring the byline strike this week. Thanks.

Monday, June 14, 2004

Indictment lodged against suspected terrorist in Ohio
With a ruling expected any week now from the Supreme Court in the enemy combatant case of Jose Padilla, the Justice Department announced yesterday that it was filing criminal charges in federal court against a man who presumably has many of the same hallmarks that made Mr. Padilla an enemy of the state. [He allegedly snuck into the country with Al Qaeda training for the purpose of conducting bombing operations against civilian targets.] Nuradin M. Abdi, a Somali immigrant, was charged with several counts including conspiracy to provide material support to terrorists and conspiracy to provide material support to foreign terrorist organizations. According to Richard Serrano of the LA Times:
The 32-year-old Abdi was arrested on immigration charges Nov. 28 and indicted on the terrorism charges Thursday by a federal grand jury in Ohio.

Attorney General John Ashcroft announced the case as the indictment was unsealed in Columbus. According to a government motion also unsealed Monday, Abdi and Faris "initiated a plot to blow up a Columbus-area shopping mall, and accepted bomb-making instructions" from other, unidentified conspirators.

The government didn't say what mall was targeted or provide any other details about the alleged plot.

Federal prosecutors also alleged that Abdi lied on passport travel records and went to Ethiopia for "jihad training," which he planned to use to attack the United States.

* * *
Abdi was named in a four-count indictment on charges that he conspired to attack the United States, provided money and services to the al-Qaida cause, and committed immigration fraud. He faces up to 80 years in prison and a half-million-dollar fine.
Analysis: My sense is that DOJ has predicted the outcome of Padilla, and that outcome doesn't look good for the Bush administration. (This Newsweek report has more on that prediction from sources within DOJ.) Thus, federal prosecutors have moved against this suspected Al Qaeda operative with standard law enforcement tools rather than the extraordinary enemy combatant power, because that power may soon be rendered unconstitutional by the courts. But that's just an educated guess, and we'll know more once the Supreme Court decides Padilla and Hamdi this month. For now, look for some interesting evidentiary issues in the Abdi case, especially with respect to the interrogations of his Al Qaeda confederates and any attempt by the government to use that evidence or derivative evidence thereof. Also, look for some application of the Classified Information Procedures Act in this case. More to follow...
Happy 229th Birthday, U.S. Army
I almost forgot the significance of today until I checked my Army Knowledge Online e-mail account. Today marks the 229th anniversary of the creation of the United States Army. The institution celebrates its birthday on June 14th because of a resolution passed that day in 1775 by the Continental Congress authorizing the creation of an Army. The date is celebrated around the world by military gala events, sports competitions, and various memorials to soldiers past and present who have made the ultimate sacrifice.

Today, the U.S. Army turns 229 at a pivotal time in its history. Technology has fundamentally changed the nature of warfare in the late 20th and early 21st Century, creating questions about the continued viability, importance and role of large ground forces. The evolution of the threat to a non-state, amorphous, networked adversary has also raised questions about the future form of America's military; so too has the need to build a viable expeditionary nation-building force which may or may not be a military-centric organization. Nonetheless, the great strength of the U.S. Army (in my opinion) is its capacity for change. It may be glacial at times; it may be evolutionary instead of revolutionary. Nonetheless, I have confidence that today's Army will adapt to tomorrow's world.
Splitting the baby
The AP reports that the Supreme Court has decided against Michael Newdow in his challenge to the constitutionality of the Pledge of Allegiance. However, the Court apparently ruled on procedural grounds, not substantive ones, so this may presage future legal battles. More to follow — and don't forget to check out How Appealing, The Volokh Conspiracy, and SCOTUSblog for more coverage.
LCDR Swift for the defense
Jonathan Mahler has a great profile of LCDR Charles Swift, the defense attorney detailed to the Pentagon's Office of Military Commissions, in Sunday's NY Times Magazine. I thought the piece did a good job of recapping the legal issues in play, and a good job depicting LCDR Swift as an officer who takes his legal and moral obligations seriously. (Editor's note: This story basically updates and rewrites a front-page story in the Wall Street Journal by Jess Bravin which appeared in March, with some additional updated facts.) Here's a short excerpt:
Swift has what is perhaps the most controversial job in one of the most controversial aspects of the war on terror. When President Bush issued the military order authorizing the use of tribunals to try non-American enemy combatants shortly after Sept. 11, critics wasted no time in denouncing them as kangaroo courts. Bush's order, after all, had bypassed Congress — the body empowered by the Constitution to convene military tribunals — and had exempted the tribunals from federal judicial review or any other civilian oversight. Furthermore, even after the war in Afghanistan, no trial dates or charges had been announced, and the presumed defendants were being held indefinitely at the United States naval base at Guantánamo Bay. Military defense attorneys like Swift seemed to have the deck stacked against them — and that is assuming that their superiors did not expect them to throw the game altogether.

But Swift has been energetic in his defense, to say the least. In January, he and his colleagues filed an incendiary friend-of-the-court brief with the Supreme Court in which, among other things, they compared their commander in chief, President Bush, to the villain of the American Revolution, King George III. In April, Swift went even further, suing Defense Secretary Donald Rumsfeld and Bush in federal court in Seattle on the grounds that their plan for a military tribunal for his client — who has still not been charged or given a trial date — violates the Constitution, federal law, the Geneva Conventions and the Uniform Code of Military Justice.

When Swift was first assigned to the defense team a little more than a year ago, not even someone who calls himself "pretty anti-authoritarian for a military guy" could have imagined this turn of events. "Generally speaking," he said, "if the United States is paying your salary, you're not supposed to sue them."

* * *
During their first few weeks on the job, Swift and Sundel were left more or less alone. With no clients, no regular contact with their superiors and no clear instructions from above, they set about educating themselves. There was a lot to learn. ''I had done some international law and I had some idea of the Geneva Conventions,'' Sundel says, ''but this was an entirely new system. At most it's similar to something we did 50 years ago, and it's not really all that similar to that.'' Taking over a large, empty office in the basement of the Pentagon, he and Swift boned up on the Geneva Conventions and the laws of war, combed through law-review articles and studied the important tribunal precedents, which stretched back to 1780 when George Washington ordered the trial by military tribunal of a British officer who had been captured with the defense plans for West Point.

An optimist by nature, Swift was inclined to believe that the post-9/11 military-tribunal process would be fair. But over the course of the spring last year, as the Defense Department continued to define the workings of the military tribunals, his hopefulness began to fade. He learned that under the emerging system, his client, should he be assigned one, would not necessarily be able to see the evidence against him. Hearsay would be permitted, and there would be no appeals process beyond a four-member review panel handpicked by the secretary of defense. What is more, the Defense Department (in effect, the prosecution) was not only defining the crimes worthy of trial by military tribunal but also doing so only after hundreds of suspects were already in custody and had been repeatedly interrogated. In theory, crimes could be retrofitted to suit the testimony of prisoners.

"It was like a Monty Python movie," Swift says. "The government had this wonderful suit of armor, a lance and a sword. And I had been given a sharp stick."
Read the whole thing.
Row develops over contractor immunity in Iraq
The Washington Post reports this morning that a diplomatic dispute has already broken out between the U.S. and nascent Iraqi government under Ayad Allawi over whether American contractors should be subject to Iraqi law. The disagreement is sure to be the first of many between the two nations, as both struggle to define their roles with respect to each other and the building of a new state in Iraq.
BAGHDAD, June 13 — In an early test of its imminent sovereignty, Iraq's new government has been resisting a U.S. demand that thousands of foreign contractors here be granted immunity from Iraqi law, in the same way as U.S. military forces are now immune, according to Iraqi sources.

The U.S. proposal, although not widely known, has touched a nerve with some nationalist-minded Iraqis already chafing under the 14-month-old U.S.-led occupation. If accepted by Prime Minister Ayad Allawi, it would put the highly visible U.S. foreign contractors into a special legal category, not subject to military justice and beyond the reach of Iraq's justice system.

The U.S. request, confirmed Sunday by Allawi's office, is one of a number of delicate issues revolving around government authority that will confront the incoming U.S. ambassador, John D. Negroponte, when Allawi's interim government assumes formal sovereignty June 30.

Although the Bush administration repeatedly has promised that Iraqis will receive authentic sovereignty, the U.S. military has made it clear that U.S. officers will remain in charge of security, the country's top concern. People here widely assume that U.S. influence will remain decisive for a long time in almost every domain.

The in-control status of U.S. troops and officials — from Humvee drivers who demand priority in traffic to civilian administrators intervening in the choice of Iraqi leaders — often has been cited by Iraqis who oppose the occupation on nationalist grounds. The civilian contractors, particularly armed security personnel, have generated similar resentment from Iraqis, many of whom long ago tired of having foreigners tell them where they can and cannot go.
I have to hold my analysis for now because I may be writing on this later today. But for now, I just want to highlight this as an important story for two reasons. First, the substantive issue is important. Second, the diplomatic exchange on this issue should establish the template for future talks between the two nations. More to follow...
It takes a village... to build an army
The New York Times has an interesting article on the challenges to military recruiting in the months since the Iraq War. According to the report, the prospect of imminent combat has fundamentally changed the decision calculus of young Americans across the country with respect to enlistment. Consequently, recruiters must do more to recruit soldiers by providing more information and more incentives to get them to volunteer for military service.
Ms. Jordan, Mr. Nelson and Ms. Reese are a few of the people being recruited this month in an unremarkable office building in an anonymous strip mall in Kansas, just one of more than 1,600 Army recruitment stations across the country, where, every year, thousands of young people hear the sales pitch, take a test, weigh in and sign papers.

But the world of recruiting has shifted significantly. Gone, recruiters here say, are the people looking mainly for easy cash to pay for college. Gone also, they say, are those who covet signing bonuses of up to $20,000 but hope to never leave their base. And gone are those who think enlisting in the Reserve or the National Guard will mean a few weekends training in a park.

The war in Iraq has changed the implications of signing up, and these potential soldiers' families, especially some who came of age during the Vietnam War, have tougher questions when recruiters call — or do not want to hear the pitch at all.

"Parents will tell us all the time that `Johnny's not joining!' and just hang up on us," said Sgt. First Class John J. Stover, who says he has "put in" some 35 soldiers in his two years as a recruiter at the station in Topeka. "The difference," Sergeant Stover said, "is that no one has ever recruited during a sustained war."

Officials at Army Recruiting Command at Fort Knox, Ky., say the Army is on pace to bring in nearly 100,000 soldiers for active duty and the Reserves by October. Army National Guard officials, meanwhile, are in the midst of reviewing whether their efforts will be sufficient to meet this year's recruiting goals, said Scott Woodham, a Guard spokesman.

Yet with the Army's presence in Iraq and Afghanistan continuing, with plans for a temporary increase of 30,000 troops in the Army's reserve, and with soldiers' tours being extended in Iraq, a top Pentagon official this month expressed concern about military recruiting in the years ahead.

On June 2, Gen. Peter Pace, vice chairman of the Joint Chiefs of Staff, told a Congressional committee that he was "not satisfied" with what the National Guard and Reserve recruiting and retention numbers might portend. "We need to be very attentive to the way that we're using especially our Guard and Reserves," General Pace said.

But here, not far from Fort Riley, Kansas' largest Army post, the challenge is immediate.

"It has definitely gotten harder out here," Sergeant Stover said from his desk in Topeka. "I look at some of the things I used to do and say, 'Hey, this isn't working now.' I have to come up with new ways to approach them."
Analysis: The problem of military overstretch is not new, nor is it unfamiliar. But it has mostly been confined to the military we have now. It has not substantially affected the recruiting population, nor has it affected the flow of volunteers into the military. Much of that probably owes to the circumstances under which most recruits join -- they're joining for economic reasons, for opportunity, for college money, to escape their hometowns, and to serve their country. The prospect of imminent combat hasn't yet changed that. But this story indicates that this could change, and indeed that it has changed for some recruiters. If young Americans become substantially less willing to serve because of the war in Iraq, then I think we'll have some tough decisions to make. We can't simply let our military shrivel and waste away, because there are other threats out there. So we may be forced to mobilize more reservists, or possibly even consider some kind of mandatory national-service program. More to follow...