Monday, October 18, 2004

The wisdom of Solomon
All this week, I'm appearing opposite Yale Law student Adam Sofen in an online debate over the Solomon Amendment -- the federal law which conditions the receipt of federal funding for universities on their decision to allow military recruiters on campus. Legal Affairs magazine is hosting the debate, which comes as the latest in a series of interesting encounters on controversial legal subjects. In addition to being a 3L at Yale, Adam is a plaintiff in SAME v. Rumsfeld, one of the cases challenging the Solomon Amendment's constitutionality in federal court. On the other side, I helped author an amicus brief supporting the Solomon Amendment in FAIR v. Rumsfeld. I've seen Adam's response to my first note, and this looks like a very challenging encounter. I'm looking forward to a good discussion of the issues -- please check it out.
Will the U.S. economy catch the flu?
That's the question posed by this interesting article in Monday's Wall Street Journal (subscription required), which looks at how a bad influenza year could affect the U.S. economy -- which is already suffering from flu-like symptoms. Obviously, the hook for the article comes from the problems faced by Chiron Corporation with respect to the production of 1/2 the nation's flu vaccine supply. But the article goes further, to try to assess the effect of what might happen if that vaccine shortage results in actual lost work days and productivity during the 2004-05 flu season:
Any prediction of the potential economic effects of the flu this year is fraught with variables, the largest of which is how severe the flu season will turn out to be. Roslyn Stone, chief operating officer of Corporate Wellness Inc., estimates that without enough flu vaccines to go around this year, twice as many people could get the flu. Corporate Wellness, which provides health-care services to about 1,000 employers, will begin giving flu shots to high-risk employees at companies this week.

Based on the average annual costs of $1 billion to $3 billion in direct flu-related medical costs, such as hospitalizations and medications, and indirect costs of $12 billion for missed work, David Cutler, a professor of economics at Harvard University estimates that the flu's effects on the economy could approach $20 billion this year.

The flu is the leading cause of Americans calling in sick to work, with 5% to 20% of U.S. residents contracting the flu on average each year. According to one survey, Americans miss on average 1.2 to 1.4 days of work each year as a result of the flu.

A recent study by ComPsych Corp., Chicago, found that 40% of people who don't get flu shots miss some time at work because of the flu, compared with less than 20% of people who receive flu shots.

"If we have a normal flu season and there are no shots available we're going to have a significant number of people miss work," says Richard A. Chaifetz, chairman and chief executive of ComPsych. He suggests that any labor-dependent industries that rely heavily on performance during the peak flu season in the U.S. from December through March, could be affected significantly. "In an economy that is forcing people to do more with less, this could be a tough season."
Analysis: Obviously, this is all speculation. Neither the public health experts nor economists can accurately predict the virulence of this year's flu virus with any reasonable amount of fidelity. At best, they can outline good and bad scenarios in order to bracket the range of possibilities. Last year was a bad flu year. If this year looks like last year, then our economy is going to feel the pain, and by extension, so will we. I'm not sure what can be done at this point to rectify the situation, given the timelines associated with the manufacture of the flu vaccine. I've got my chicken and matzo ball soup stockpile... do you?

Sunday, October 17, 2004

Army's desert OPFOR on the way to Iraq
Deployment of elite training regiment could have bad long-term implications for the Army

The Los Angeles Times provides a long report in Sunday's paper on the deployment of the 11th Armored Cavalry Regiment, dubbed "Blackhorse" for the stallion on its shoulder patch, to Iraq for a year of combat duty. The regiment has long served as as the opposing force, or "OPFOR", for units from other installations coming to train at the Army's National Training Center at Fort Irwin, Calif. Now, with the Army stretched to practically its breaking point over the Iraq and Afghanistan missions, the Army has turned to the Blackhorse regiment for help.
For years, The Box has been a stage for the Army's elite "opposition force" — soldiers expert at assuming the roles of enemy fighters, be they the Taliban or Iraqi insurgents. Their mission is to toughen new soldiers with elaborate simulations — staging sniper fire, riots, suicide car bombings and potentially dangerous culture clashes.

Staging such scenes has long been the work of the fabled 11th Armored Cavalry Regiment, or Black Horse Regiment. But starting next month, the 3,500-member unit will begin shipping out to Iraq from the Ft. Irwin National Training Center, near Barstow. Deployments are nothing new in the Army, of course, but there is a special sense of urgency about dispatching the Black Horse to tackle situations that it has trained roughly 500,000 soldiers to handle since 1994. Now the bombs and bullets they encounter will be all too real.

"No one ever thought the Black Horse would be taken out of the National Training Center; they are just too valuable here," said Maj. John Clearwater. "But the Army is stretched too thin, and Iraq is a big mission."
The article misses the most important point: deploying the OPFOR is like eating your seed corn. This unit is responsible for training other units and raising their level of expertise and combat readiness. The 11th ACR is being replaced by a National Guard unit. That's like replacing the Dodgers with a high school baseball team. Sure, they can both play baseball and wear the uniform — but one is a whole lot more proficient and experienced at its job. The OPFOR has a reputation as a tough enemy, and that's a good thing because it forces units training at the NTC to become better themselves. By replacing this unit with National Guard troops, the Army has hurt its ability to produce good units for Iraq in the future. Suffice to say, National Guard and active units that go through Fort Irwin aren't going to get the same tough experience they would have with the Blackhorse regiment as OPFOR — and that means they'll be less ready for combat when they get to Iraq. This is a desperation measure, and I think the Army will come to regret it.

Saturday, October 16, 2004

Mutiny in the desert?
The New York Times and others report today on an incident in Iraq that is very disturbing, to say the least. 17 U.S. Army reservists appear to have refused to conduct their mission, choosing a court martial over a perceived suicide mission. I'm the process of writing something on this now, so I can't share all my thoughts on the matter. But I will say this: Don't jump to conclusions; first reports are often wrong. I'm skeptical that this is an outright mutiny by soldiers refusing to do their duty. But on the other hand, I've talked with Army logistics officers about the state of affairs over there, and it's certainly within the realm of possibility, given the IED and ambush threat on Iraqi roads.

More to follow...

Update I: For more of my thoughts on this incident, see "The Reserve Mutiny" published at Slate.Com.
First use of Military Extraterritorial Jurisdiction Act ends in conviction
The Los Angeles Times reports that federal prosecutors prevailed on Friday in U.S. District Court in their bid to convict Latasha Arnt of voluntary manslaughter in the 2003 death of her husband, a U.S. Air Force airman assigned to Turkey. The case was the first test for the Military Extraterritorial Jurisdiction Act ("MEJA"). According to a Justice Department spokesman, the federal public defenders in the case declined to challenge the court's jurisdiction, so in a technical sense that law still remains untested. But that may be a distinction with a difference for Ms. Arnt, who faces federal prison time as a result of something she did overseas that would not normally fall within U.S. criminal jurisdiction.
Shifting military attitudes
Everyone wants to know who the military will vote for this year, both because of the way their votes will affect swing-state outcomes and because of the way military opinion may shape the opinions of their friends and families. Esther Schrader covers that subject pretty well in this L.A. Times article discussing the recent National Annenberg Election Survey conducted by the University of Pennsylvania.

But in addition to the election-oriented questions, there were some other answers that piqued my interest. Here are a few from Ms. Schrader's story:
Of 655 respondents surveyed in every state, 56% of service members and 64% of military family members said too much of the weight of fighting the war had been put on the Guard and Reserve when active duty forces should have been expanded instead.

Only 38% of respondents said that reserve forces had been properly trained and equipped for the mission. Forty-two percent said they had not.

The respondents also overwhelmingly disagreed with the Pentagon policy of barring photographs of flag-draped coffins being returned to Dover Air Force Base in Delaware. Fifty-one percent of the military sample said allowing photographs would increase respect for the sacrifices made by the military. Only 8% said it would reduce respect.

The respondents insisted on punishment tor those involved with abuse of prisoners at Abu Ghraib. Fifty percent said higher-level commanders in Iraq should be punished, and 29% said civilians in the Pentagon should be punished.

* * *
Only 30% said they thought veterans were getting the health care they had been promised. And while 57% said that Pentagon-ordered extensions of service beyond enlistment dates were proper, 39%, a significant minority, said they were not.

* * *
The poll's findings on attitudes toward gays in the military also showed striking differences by rank. Commissioned officers and their families opposed their inclusion by 53% to 39%. Noncommissioned officers and their families were also clearly opposed, by a 57% to 35% margin.

But 50% of junior enlisted personnel said gays and lesbians should be allowed to serve openly, while 43% said they should not.

On the issue of women in the service, once divisive, the military sample overwhelmingly approved of the work of women in the armed forces. Seventy-four percent said they performed as well as the men they served with, 10% said they did worse than men, and 7% said they did better than men.
These statistics are staggering. For one thing, it's really hard to conduct opinion surveys of the military, because the Pentagon doesn't generally allow it lest the military get too wrapped up in electioneering or political activity. The Military Times organization recently conducted a survey of its readership, but that generally included military professionals and too few junior enlisted personnel. Sometimes, you can conduct a survey of Fayetteville N.C. or Killeen TX and get a fairly military-oriented sample. But in general, it's really hard to get these kinds of numbers. So, these are very significant, because they give us a glimpse into the military mind in a way that just doesn't happen very often.

What these numbers tell me is that the military is far more progressive and pragmatic than most politicians give it credit for. Take the stance on women and gays in uniform. Most people take it for granted that the military supports the ban on gays in uniform, and that most soldiers don't want women in the military. But ask any soldier who's been there and done that (and got the t-shirt), and he/she will tell you that what matters is getting the job done -- not who you are. Similarly, these soldiers also don't seem to care much for the Bush administration's approach to handling Abu Ghraib. Ask PFC Joe Snuffy, and he'll tell you that a few officers ought to be paying the price that SPC Sivits and other enlisted men are paying for those prison abuses. And the list goes on. The bottom line is that the military mind isn't what most people think it is.

The important thing to remember is that we have an all-volunteer military that is, in many ways, a cross-section of America. The caricature of a U.S. Army NCO applies in some cases; I certainly knew my share of truck-driving, tobacco-chewin', gun-totin', thrice-marryin', church-goin', GOP-votin', tough grizzled NCOs from the South. But for every one of those, I also knew a Puerto Rican NCO, a black NCO -- I even knew an NCO from New York with a graduate degree in computer science. Opinion surveys like this are useful, but to some extent, they tell us what we already know: that the U.S. military is a reflection of U.S. society, with all of its diversity and disagreements.
Authorized practices
A great deal of attention has been paid to the abuses at Abu Ghraib, and I'm about to have a lengthy article on the subject so I won't add anything else for now.

But in many ways, the abuses at Abu Ghraib have served as a diversion for things the U.S. government is doing elsewhere which respect to detainees that may not be all that wise. The New York Times reports in Sunday's paper on some of these, including what the euphemism "coercive interrogation" has come to mean at Guantanamo Bay, Cuba. According to Neil Lewis:
The people, military guards, intelligence agents and others, described in interviews with The New York Times a range of procedures that included treatment they said was highly abusive occurring over a long period of time, as well as rewards for prisoners who cooperated with interrogators.

One regular procedure that was described by people who worked at Camp Delta, the main prison facility at the naval base in Cuba, was making uncooperative prisoners strip to their underwear, having them sit in a chair while shackled hand and foot to a bolt in the floor, and forcing them to endure strobe lights and screamingly loud rock and rap music played through two close loudspeakers, while the air-conditioning was turned up to maximum levels, said one military official who witnessed the procedure. The official said that was intended to make the detainees uncomfortable, as they were accustomed to high temperatures both in their native countries and their cells.

Such sessions could last up to 14 hours with breaks, said the official, who described the treatment after being contacted by The Times.

"It fried them,'' the official said, who said that anger over the treatment the prisoners endured was the reason for speaking with a reporter. Another person familiar with the procedure who was contacted by The Times said: "They were very wobbly. They came back to their cells and were just completely out of it.''

The new information comes from a number of people, some of whom witnessed or participated in the techniques and others who were in a position to know the details of the operation and corroborate their accounts.
Remember -- these practices have been explicitly sanctioned by the Pentagon. Guantanamo is what the torture memos were all about. The torture memos were never explicitly about what happened at Abu Ghraib, though in many ways, they contributed to the abuses there. But the memos had everything to do with these actions. Pentagon and Justice Department lawyers sought to legitimize these practices by a) ensuring the Geneva Conventions would not apply to Al Qaeda detainees and b) narrowly construing the federal anti-torture statute so as not to apply to this kind of conduct. In doing so, the administration loosened the restrictions on its field operatives such that they could use a list of two to three dozen coercive techniques. Until the torture memos, the U.S. military had considered these techniques to be over the line -- beyond the pale of what civilized, professional militaries did with their prisoners. Sept. 11, and the torture memos, changed that. And so these practices, many of which had been specifically excluded from Army FM 34-52, were now specifically authorized by the Secretary of Defense for use at Guantanamo Bay.

I've said it before, and I'll say it again. There may be times when such tactics are called for. If a little bit of "smacky face", to use Jess Bravin's term of art, will get the job done, then I can accept that. But I am not willing to abandon the Geneva Conventions altogether, and the professionalism of our human intelligence community, for what has been reported to be little in the way of intelligence gains from Gitmo. The fact of the matter is that most prisoners there lack any significant intelligence value. And even these "dirty 30", as they're called, probably lack anything good now since they've been out of action for quite some time. If we're going to shred the Geneva Conventions and make a mockery of ourselves around the world, we better make sure it's worth it.