Monday, September 13, 2004

Stories I missed... but hopefully you didn't
Here's a digest, in reverse chronological order, of some of the big stories I missed while on vacation during the last two weeks. As the old Chinese curse goes, we live in interesting times. This list is not meant to cover everything — just those stories that caught my eye while going through the papers from the last couple of weeks.

Genocide in Sudan — now what? The Washington Post reported on Sept. 10 on some long overdue comments by Secretary of State Colin Powell to the Senate Foreign Relations Committee, in which he categorically stated that genocide is occurring in the Sudan right now. Secretary Powell did not go so far as to say the U.S. must act, though that is the clear implication of this conclusion under the international treaty governing genocide. That said, I'm not quite sure how the U.S. should act in the Sudan if it decides to act, or how any other force should act. Establishing a no-fly zone would be one option; so would establishing some sort of secure refugee area. But beyond that, there aren't a lot of good options, and even those two options will take a Herculean effort because of the Sudan's geography.

Ghost detainees. Army Gen. Paul Kern, who oversaw that service's most sweeping inquiry into detainee operations, told a Senate hearing on Sept. 9 that CIA field officers may have hidden up to 100 detainees from the Red Cross and military authorities by keeping them out of the official registration process. Presumably, the detainees were kept secret in order to enable some extra-legal methods of interrogation, or possibly to "render" them over to third-party nations in order to conduct interrogations. The scary thing is that the Army still can't wrap its head around this issue, because much remains classified and compartmentalized such that it can't be pried open by investigators.

The heat of battle. The trial of Army Capt. Roger Maynulet began last week for the killing of an Iraqi following a running gun battle in the streets of Baghdad. According to the Army, CPT Maynulet (with whom I served at Fort Hood) shot the Iraqi in violation of the rules of engagement. According to CPT Maynulet's defense team, he shot the Iraqi out of compassion, after requesting a MEDEVAC and determining that there was no way the Iraqi would live. My sense is that CPT Maynulet did break the ROE, but that he did so under extraordinary circumstances. I'm not sure how this case will come out.

Reversal of fortune for the Patriot Act? Howard Bashman relays the news that the 9th Circuit Court of Appeals has granted an en banc hearing in the case Humanitarian Law Project v. Ashcroft, decided by a 3-judge panel in December 2003. In that decision, the 9th Circuit held that part of the federal criminal law outlawing material support to terrorism was unconstitutional, because the words "training" and "personnel" were too vague. A subsequent decision by the U.S. District Court in Los Angeles held another part of that law — covering "expert advice and assistance" — to be unconstitutional as well. It's not clear how the court will go on this one, though the outcome of this hearing will have a major impact on the way the Justice Department prosecutes the legal war on terrorism. (See also this SF Chronicle story on the matter.)

Contracting trouble? The NY Times and Washington Post carried interesting reports on Sept. 8 regarding the Army's decision to rebid its massive contract for Halliburton in Iraq, and Halliburton's internal turmoil over how to go forward with respect to its contingency contracting operations in Iraq. I have criticized the use and overuse of contractors in Iraq for some purposes, especially for what I deem military functions like personal protective services and interrogation support. However, I don't think we should tar all the contractors in Iraq with that brush, because many (if not most) are doing as good of a job as possible with the guidance and situation they have been given.

Body count. The tally of Americans killed in Iraq surpassed 1,000 on Sept. 7, according to the Washington Post and other media. I've written before on the problems with body counts — friendly and enemy — as a metric of anything. For what it's worth, I still think this is an arbitrary and irrational way to measure success or failure. However, these numbers still have meaning, and I do think there is a nexus between casualty counts and public support for the war. It will take very strong leadership from the White House to persevere in Iraq — and elsewhere in the war on terror — as the cost in blood continues to climb.

Works great, less coercive. The L.A. Times and the N.Y. Times both had reports over the Labor Day weekend on the new interrogation methods at Abu Ghraib. Interesting stuff... but why didn't we figure this out a lot earlier?

The blogs of war. Army Spec. Colby Buzzell's weblog "My War" has gotten a lot of attention lately — from his readers, from his chain of command, from the media, and even from the Pentagon. Its demise was reported by at least one media organization, and his 'blog has been profiled by the Wall Street Journal and the Los Angeles Times. CPT Eric Magnell, also now serving in Iraq, has an interesting note on the matter at his "Dagger Jag" site. In response to all the publicity, and OPSEC concerns, Spec. Buzzell says "I am officially no longer writing about any of my personal experiences here in Iraq on this website." That's too bad, but I understand the reasons behind this decision. Still, I look forward to reading more of Spec. Buzzell's dispatches from the field, and I hope he continues his writing in some form from Iraq.

Zealous prosecutors. A report appeared in the Sept. 2 Washington Post regarding a Justice Department report that was highly critical of federal prosecutors in Detroit for their conduct of an important terrorism case.
A special attorney assigned to review the convictions of three alleged members of a terrorist sleeper cell in Detroit found that the prosecution withheld numerous e-mails, photographs, witness statements and other items that undercut the government's case and should have been turned over to the defense, according to a 60-page memorandum filed in U.S. District Court in Detroit late Tuesday and released yesterday.

The errors and possible misconduct were so rampant that there is "no reasonable prospect of winning" on appeal, according to the filing to U.S. District Judge Gerald Rosen. As a result, prosecutors agreed to a defense request for a new trial and will pursue only document fraud charges against the three defendants, two of whom were convicted of terrorism charges last year.
Analysis: Until recently, this had been heralded as one of the Justice Department's victories in the war on terrorism, along with the plea bargain convictions of the "Lackawanna Six" and others. But now, I think, we should properly view this as a defeat — or worse. And the worst thing is that this was probably a winnable case, but for the malfeasance by prosecutors who were a little too eager to win by bending the rules until they broke.

Spies like us. There was lots of news during the past two weeks about the FBI investigation into midlevel Pentagon analyst (WTF does that label mean anyway?) Lawrence A. Franklin. Israel, for whom Mr. Franklin is alleged to have gathered information, denies the allegations, of course. That's how the game is played. I'm not surprised by the revelation (if you can call it that) that one of our allies is trying to get information surreptitiously out of the Defense Department. What I'm surprised about is how clumsy these people were about sharing information — especially with INC chief Ahmed Chalabi. Josh Marshall have had some interesting articles on their site regarding this stuff... I imagine we haven't seen the end of it.

A new, new world order. Tom Ricks had an interesting report in Sept. 3's Washington Post on a proposal circulating around the top echelons of the Pentagon which would dramatically alter the way the Defense Department visualizes the global security environment — and trains, equips and organizes its forces to deal with that environment.
The proposal, presented two weeks ago to Defense Secretary Donald H. Rumsfeld and others, could carry major implications for defense spending, eventually moving some funds away from ships, tanks and planes and toward troops, elite Special Operations forces and intelligence gathering. The shift has been building for some time, but the plan circulating at the Pentagon would accelerate the changes, analysts said.

The plan's working assumption is that the United States faces almost no serious conventional threats from traditional, state-based militaries. Thus, it says, the United States should accept more risk in that area to pay more attention to other threats: terrorism, the type of low-tech guerrilla fighting confronting troops in Iraq, and the possibility of dramatic technological advances by adversaries. Some of those priorities depend more heavily on troop strength than high-tech weaponry and could increase the pressure on the Pentagon to build the size of the Army and the Marine Corps.
Terrorism knows no limits. While in Europe, I read the sickening news about the seizure of Middle School No. 1 in Beslan by Chechen thugs seeking to send a message to Moscow. Time magazine had a good set of articles on the massacre, as did The Economist. I can hardly fault Russian President Vladimir Putin for his response. If those were American children, we'd be demanding blood too — just as we did shortly after 9/11. There are those who will seek to justify or excuse such conduct as necessary, or as the predictable asymmetric response of an oppressed people (the Chechens). I can understand liberation movements, and I appreciate the struggle for self-determination. However, only a fool would call these killings anything other than murder, and only a fool would accept the ex post and ex ante justifications of those who might try to explain or apologize them away.

Guilty on all counts. On Sept. 3, a military jury found Army Spec. Ryan G. Anderson guilty on five charges of attempting to pass information about his unit, the 81st Separate Armor Brigade (NG), to Al Qaeda before that unit's deployment to Iraq. Spec. Anderson was sentenced to life in a military prison and a dishonorable discharge, though his sentence must be formally reviewed and approved by the convening authority. Unless some serious error was committed by the trial judge in this case, it looks like Spec. Anderson will spend a very long time — if not his entire life — behind bars.

More bad news. Tom Ricks reported on Sept. 1 in the Washington Post that a separate Army Criminal Investigative Division (CID) investigation into detainee abuses in Afghanistan has concluded, and recommended criminal charges against 26 soldiers for abuses that resulted in the deaths of two detainees. Most of the soldiers implicated in this report come from the Army's 519th Military Intelligence Battalion, stationed at Fort Bragg, N.C. Separately, The Post reported on Sept. 4 that the Navy had charged four of its elite SEALs with assault, maltreatment of detainees and making false statements to investigators in connection with detainee abuses in Iraq.

Spooks and SpecOps. The AP reported on Aug. 31 that the CIA and Pentagon were united in their opposition to a proposal to join the CIA's paramilitary units with the military's special operations forces under one directorate or chain of command. This is an extremely important story, and one that I'm surprised to see reported in the press because of the clandestine nature of these activities. I'll have more on it later.

To free or not to free... that is the question. The Washington Post reported on Aug. 31 that talks were continuing between the Defense Department, Justice Department, and lawyers for enemy combatant Yaser Hamdi. The Supreme Court issued a ruling in his case in late June 2004, and since then, the Pentagon has all but admitted that he has zero residual intelligence value. I am not certain why these negotiations are taking so long, but I imagine that Mr. Hamdi will have one heck of a Bivens action should he ever decide to bring one. (Note: I'm 95% sure the agreement for his release will include a waiver clause for such suits.)

General breakdown. The AP reported on Aug. 30 that the careers of four top generals in Iraq were likely over as a result of the investigations into abuses at Abu Ghraib. LTG Ricardo Sanchez, MG Walter Wojdakowski, MG Barbara Fast and BG Janis Karpinski are all unlikely to be promoted or advanced in any way, though only BG Karpinski has received a formal reprimand as a result of the abuses. BG Karpinski continues to deny the criticisms against her, saying "It was a conspiracy all along," Karpinski said. "Sanchez and Miller and likely Fast had fallback plans and people to blame if anything came unglued." Commentary: Evidently, BG Karpinski needed to chew some more tobacco to stay awake during the command responsibility portions of her military education. Even if these generals played no direct role in the abuses, I think this is the right result. General officers are responsible for what their unit does or fails to do — period, full stop. There may even be grounds to charge some of these officers criminally, but those facts are still being established. For now, I think that it's appropriate that these officers pay for the Abu Ghraib transgressions with their careers.

Justice runs aground at Gitmo. The military commissions being held at Guantanamo Bay got off to a rocky start, according to Toni Locy of USA Today and Jess Bravin of the Wall Street Journal dated Aug. 30. The panel struggled to deal with a litany of pre-trial issues, from defense challenges to the tribunals' legitimacy to a pervasive lack of translators. Mr. Bravin reported that the Pentagon was anxious to move past these procedural issues to more substantive ones, and in that vein, had plans to charge a second slate of defendants with crimes before the military commissions.
Pentagon officials seemed eager to change the subject from the commission's problems to the alleged villainy of those haled before it. Col. Swann said that as soon as this week, he would begin filing charges against the next slate of defendants. The charges could include murder, and in some cases, Col. Swann said, "the American people will recognize the names of the individuals." He wouldn't elaborate, but several alleged al Qaeda leaders in custody — including Ramzi Binalshibh, Khalid Sheikh Mohammed and Abu Zubaydah — are accused of personal involvement in planning the Sept. 11, 2001, attacks.
Interestingly, The Post reported on Sept. 1 that a newly-elected Kerry Administration would scrap these commissions. Instead of military commissions, Sen. John Edwards said their administration would use military courts martial to adjudicate the guilt or innocence of detainees at Guantanamo Bay.

The Wild West (of Iraq). The New York Times' John F. Burns and Erik Eckholm had an interesting — if slightly pessimistic — report on Aug. 29 on the state of the war in Western Iraq, where deadly clashes between U.S. forces and insurgents have become the norm.

Chill out. Bradley Graham reported in the Aug. 29 issue of the Washington Post about the "chilling effect" being experienced in the military intelligence community as a result of the Abu Ghraib investigation and other inquiries into detainee operations. According to Maj. Gen. George Fay, who led one of the recent reports on the matter, "People are much more reluctant today to be in any way aggressive relative to the collection and the interrogation process." Commentary: Personally, I'm not surprised by this. Army investigators — whether they are CID agents or 15-6 officers — can be especially zealous. And the majority of soldiers in these positions are officers and NCOs who want to serve their time and take care of their families; they're not going to risk their livelihood by crossing the line in any way. Unfortunately, this creates problems, because we need the human intelligence ("HUMINT") from these detainees. The answer is to find a balance between serving tea to detainees and terrorizing detainees with dogs and beatings. There's enough room on that continuum, I think, to find the right set of coercive interrogation tactics that gets results without debasing our nation.

Assessing progress. After a month with the Marines in Western Iraq, UPI correspondent Pam Hess has a good report looking at the challenges facing U.S. forces there, and the windy road to victory and/or exit.

More to follow...
Back from vacation
I just returned from Europe to a full inbox and a lot of news that I need to catch up on. I've also got a couple of article projects underway that I need to finish by the end of the week. Stay tuned though... I'll try to have some notes on the Killian memos, the ongoing endeavor in Iraq, and other subjects in the next days.