Sunday, December 19, 2004

Backing the troops -- but how?
Does support for the troops mandate support for their mission? And if not, how do you reconcile the inherent dissonance between supporting the soldier and opposing his mission?

Rick Atkinson, the Pulitzer Prize-winning author of An Army at Dawn, and more recently, In the Company of Soldiers, has a thoughtful essay in the Sunday Outlook section of today's Washington Post on a dilemma I've long wrestled with. Mr. Atkinson writes about the tension between supporting the troops' morale by supporting their ultimate purpose — and supporting the troops by critically examining the means and ends chosen for their employment. Here's how he begins:
One morning in 1966, when I was an eighth-grader at Gen. George S. Patton Jr. Junior High School at Fort Leavenworth, Kan., we were mustered onto the playground in a formation of huge block letters that spelled: WE BACK YOU. A helicopter appeared over- head, and a photographer leaned from the cockpit. The subsequent photograph, published in a newspaper, was meant to inspirit the troops in Vietnam.

As the sons and daughters of professional Army officers, our impulse was to close ranks and stand where we were told to stand. For us the affirmation was not political, it was personal. We tried not to confuse the warriors with the war.

Yet over the years as the war dragged on, the dead stacked up and the country splintered, that distinction became harder to sustain. The suspicion that our soldiers were risking their lives in a bad, lost cause soon became so searing that many of us insisted the war was righteous and winnable. To admit otherwise felt like a betrayal of those we loved; it also implied that we had been duped. We closed ranks with the policy as well as with the troops. We conflated the warriors and the war. So did the country, in ways that became toxic.

Today the equivalent of "We back you" slogans can be found on military posts across the country, expressed in yellow ribbons and lapel pins and yard signs supporting the troops in Iraq. In a relatively small, volunteer Army, the agony of 1,300 dead and 10,000 wounded sears some communities more than others, and none more than the extended family that is the professional military.
I think he's quite right to draw the comparison between today and the Vietnam War. The common denominator between these two eras is the charge that those who oppose the nation's reasons for war or its conduct of the war might somehow be giving aid and comfort to the enemy. In Vietnam, this assertion was buttressed by the fact that both the peace movement and the North Vietnamese wanted nothing more than to see the U.S. withdraw from Southeast Asia. Such a common goal made it easy to draw the conceptual links. Today, the link is not so clear, as many who oppose the war in Iraq do so because it frustrates U.S. policy in the Middle East, not because they want withdrawal. Nonetheless, those who oppose the war, or who call for its chief architects' resignation, have been often criticized as anti-American or disloyal to the troops.

Indeed, such conflation reaches the highest levels of the U.S. government. When former Defense Secretary James Schlesinger issued his report on the Abu Ghraib scandal, he rejected out of hand the prospect that Defense Secretary Don Rumsfeld should resign, saying "his resignation would be a boon to all of America's enemies, and consequently I think that it would be a misfortune if it were to take place." (See also this AP story capturing current GOP sentiment on the SecDef's fate.) That astonishing statement captures the very essence of this issue. Even when we know we should make a certain policy choice, such as to fire the SecDef, we will not do so. The need to maintain the veneer of unity and resolvle trumps all; any wavering, uncertainty or debate is assumed top project the appearance of weakness to our enemies. We saw this issue during the presidential election too, with the assertions by President Bush that Sen. Kerry was unfit to serve as Commander-in-Chief because he questioned the wisdom and efficacy of the war in Iraq.

Mr. Atkinson continues that this tension is often too great to reconcile, and that we may have to live with simply identifying it:
While some voice private doubts, others insist — often with increasing stridency — that the war is justified, that the insurgency can be crushed and that naysaying undermines both national will and troop morale. I admire their steadfast faith, even as I recognize the dilemma. To disbelieve seems too much like betrayal. Skepticism and dissent appear inimical to service and sacrifice.

Keeping the warriors and the war untangled is extraordinarily difficult, intellectually and emotionally. All that most of us can do is to mean precisely what we say: We back you.
This is a dilemma I've wrestled with since March 2003, if not earlier. I'm still not sure there's a way to coherently reconcile one's support for the troops with opposition to the war. This seems like cognitive dissonance in the extreme; to support the people who are laboring on one hand, but to oppose the purpose towards which they pour their blood, sweat and tears. On the receiving end of this speech, it's hard to see the line between supporting our soldiers while opposing the purpose for which they labor. It's not like we're talking about some corporate bottom line here. This purpose is used to justify great sacrifice by our soldiers, much more so than any employee in any other context. They face mortal danger every day; they miss their families; some will be wounded, a few killed — all in the name of this purpose. And you're going to come in and say that the war's being fought wrong — or worse yet, that this purpose isn't good enough? If that's true, the whole house of cards comes tumbling down — there's no more purpose to justify their enormous sacrifices.

Viktor Frankl wrote so many years ago that man will bear almost any hardship in the name of a purpose. If we oppose the purpose of this administration in Iraq, do we make it tougher for our soldiers to bear the hardship? On the other hand, if we remain mute, do we risk prolonging the hardship unnecessarily?

I'm still unsure about my answer. But increasingly, I have come to the conclusion that we owe it to our soldiers, as the citizens who exercise ultimate control over the politicians who send them into harm's way, to question the purposes and means of our wars. True loyalty to the soldier requires we bear witness to their sacrifice, and that we honor their sacrifice by ensuring that their efforts are not wasted, let alone their lives. Our democracy depends on the willingness of each generation of young Americans to put themselves in harm's way. But those young Americans depend on us, as citizens, to ensure they go into combat with the right stuff, and for the right cause.

Post Script: It is a sign of our nation's strength that we can produce young citizens like Alan Babin, who was willing to serve in the Army as a combat medic. We owe it to him (and the thousands like him) to do our duty as citizens.

Saturday, December 18, 2004

Unwise counsel
Justice Department publishes one of its early post-9/11 memoranda on presidential war power; does the memo cut the mustard?

Michael Isikoff reports in Newsweek on what is apparently the first memorandum by the Office of Legal Counsel after Sept. 11 to make the sweeping claims of executive power which later became the hallmark of other memoranda on the Geneva Conventions, the use of torture, and other controversial subjects. The existence of the memo had been reported in fall 2001, but its text was not known until now. Apparently, the unclassified memo got posted on the DOJ website at some point over the last two weeks, and came to Mr. Isikoff's attention via an attentive White House staffer. According to Mr. Isikoff:
The memo, written by Justice Department lawyer John Yoo, argues that there are effectively "no limits" on the president's authority to wage war—a sweeping assertion of executive power that some constitutional scholars say goes considerably beyond any that had previously been articulated by the department.

Although it makes no reference to Saddam Hussein's government, the 15-page memo also seems to lay a legal groundwork for the president to invade Iraq—without approval of Congress—long before the White House had publicly expressed any intent to do so. "The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of Sept. 11," the memo states.

* * *
In a footnote that explains why such broad war-making authority is needed, the memo argues that terrorist groups and their state sponsors "operate by secrecy and concealment" and it is therefore difficult to establish, by the standards of criminal law, what groups are behind particular terrorist attacks. Moreover, "it may be impossible" for the president to disclose such evidence even if he has it without compromising classified methods and sources.

But the memo concludes that this should not in any way restrict the president from ordering whatever military actions "in his best judgment" he believes are necessary to protect the country. In the exercise of his power to use military force, "the president's decisions are for him alone and are unreviewable."

Addressed to Gonzales' chief deputy at the time, Tim Flanigan, the memo lays out a line of argument about broad presidential wartime powers that would be repeated time and again in a series of secret memos to the White House about controversial decisions in the war on terror. The arguments pushed by Yoo, a prolific conservative scholar who has since left the Justice Department, reached what many view as its apex nearly a year later when, in another memo written by a colleague Jay Bybee, the Office of Legal Counsel concluded that the president's powers were so expansive that he and his surrogates were not bound by congressional laws or international treaties proscribing torture during the interrogation of detainees.

The disclosure last June of that Aug. 1, 2002, torture memo, in the aftermath of the Abu Ghraib scandal in Iraq, provoked a public firestorm and prompted the Justice Department to withdraw it. Even Gonzales, who had participated in meetings where the torture memo was discussed, publicly called its assertions of executive power as "overly broad" and "unnecessary."
The job of OLC is to write memos like this, although I'm not sure this memo rises to the standard of quality I've seen in other OLC work product. Within the executive branch, OLC plays a very important (and little known) role. It serves as the "honest broker" for agency heads, agency general counsel offices, and the fights which often break out between them. This is especially true of Article I/II conflicts, i.e. "does my agency have the power to do this?" Indeed, OLC opinions often provide the final answer on Constitutional law questions because these internecine disputes almost never go to the courts. Historically, the executive branch has always taken a more expansive view of its rights and powers than the courts or Congress. And to some extent, OLC opinions have abetted that, by encouraging a more expansive view of presidential prerogatives. But on the majority of issues, OLC opinions play a different role — they don't bless expansions of executive power, they simply say what the law is on a particular question.

And so, it's not unusual in the abstract for OLC to opine for the president on the nature and extent of his war powers. Indeed, following Sept. 11, one would expect the president to turn to his legal advisers with just a question. However, it's not clear that OLC gave the president a good answer here. Even White House Counsel Alberto Gonzales, in a July 2004 press conference, admitted that this memo (and its progeny) went too far. This memo doesn't just tell the President what the law is, it tells the President 1) what the author thinks the law ought to be, and perhaps more dangerously, 2) what the President wants to hear about the law.

This is not good lawyering, and it's not good public service. By taking such a precarious legal position, the author has set the President up for failure. Memoranda like this pushed the President to take an increasingly expansive view of his own powers, and engendered a kind of "group think" within the administration on these issues. Nearly every legal opinion made public since Sept. 11 has shown the same sort of bias. The unfortunate result for the White House is that it has gotten the law wrong — to the point where the Supreme Court handed it a massive smackdown in June 2004 with the Hamdi and Rasul decisions.

The White House would have been far better served by an OLC that had offered it balanced, unbiased, honest advice. Giving your client the advice he wants often may make him temporarily happy, but it's rarely the best way to serve your client in the long run.

Friday, December 17, 2004

Bridging America's civil-military divide
Thursday's Wall Street Journal carried a great article by John Hechinger on the effort being taken by a number of Ivy League alums serving in the U.S. military to reestablish a military presence at their colleges and universities.
Now, with the Iraq war bogging down and the Defense Department eager for recruits, some in the military are pushing for a return of ROTC to these elite universities. In recent weeks, the Defense Department has privately asked top brass at the Army, Air Force, Navy and Marines whether they are interested in opening a small ROTC outpost at Harvard. For decades students at Harvard who join ROTC, including Lt. Tuohey, have trained at the neighboring Massachusetts Institute of Technology in Cambridge, Mass.

In a letter that is about to be sent to Harvard alumni, Lt. Col. Brian Baker, the commander of the ROTC Army battalion at MIT, says he plans to meet with Harvard President Lawrence Summers in the spring to lobby for a Harvard beachhead. "Our nation needs a cross section of America represented in its officer corps," he writes, adding that he wants to double the number of Harvard cadets to 100.

The latest effort comes after the Defense Business Board, an advisory group to Secretary of Defense Donald Rumsfeld, issued a little-noticed report this year that called for a return of ROTC to elite, mostly Ivy League, campuses. Members focused on Harvard, but also discussed Columbia and Stanford.

Congress has also ratcheted up the pressure by passing a measure sponsored by Rep. Chris Cox (R., Calif.), a Harvard alumnus. The bill, recently signed into law by President Bush, strengthened an earlier law and made it clear that Congress has empowered the government to withdraw millions of dollars in federal funding from schools that bar military recruiters or the ROTC.

In November, the U.S. Court of Appeals for the Third Circuit in Philadelphia ruled that the law, known as the Solomon amendment, was unconstitutional because it violated schools' free-speech rights to protest government policy. A government appeal is widely expected.

The recent developments at the Pentagon, in Congress and in the courtroom have put presidents like Harvard's Mr. Summers in a tight spot.

College administrators must try to sidestep potential confrontation with the government and at the same time avoid stirring up old passions and protests against the war in Iraq. Mr. Summers, who has been signaling more openness to ROTC lately, declined to comment through a spokeswoman.
Intel Dump has no comment either, except to laud these young men and women who are pushing their elite universities to reestablish military presences on campus. Read the whole article.

Thursday, December 16, 2004

Remembering past battles
The Army's historians have put together a pretty interesting website to commemorate the 60th anniversary of the Battle of the Bulge. That battle began when German army units launched a counteroffensive in the Ardennes forest on Dec. 16, 1944, in a desperate attempt to halt the Allied advance on Nazi Germany. More than 200,000 German troops participated in the offensive. The counterattack scored some stunning successes at first, including the encirclement of the 101st Airborne Division at Bastogne. But Allied combat power eventually beat back the German assault, and the rest is history.

Wednesday, December 15, 2004

A few more bad apples
Richard Serrano reports in the L.A. Times and Tom Ricks reports in the Washington Post today about new documents which portray additional prisoner abuses in Iraq. While most of the documented incidents do not rise to the level of sadism or depravity as the Abu Ghraib abuses, they raise significant questions about the extent and scope of detainee abuse in Iraq -- particularly because these abuses were committed by active-duty Marines, possibly undercutting the assertion that Abu Ghraib resulted from bad discipline in an Army Reserve unit. According to Mr. Serrano:
The latest revelations of prisoner abuse cases, obtained by the American Civil Liberties Union in a lawsuit against the government, involved previously unknown incidents in which 11 Marines were punished for abusing detainees. Military officials indicated that they had investigated 13 other cases, but deemed them unsubstantiated. Four investigations are pending.

Military superiors handed down sentences of up to a year in confinement after finding Marines guilty of offenses ranging from assault to "cruelty and mistreatment," the documents show.

The new documents are the latest in a series of reports, e-mails and other records that the ACLU has obtained to bolster its contention that the abuse of prisoners goes far beyond the handful of soldiers charged with abusing detainees at the Abu Ghraib prison in Iraq.

The photographs of naked Iraqi prisoners being tortured by American troops at the prison shocked the world in April. The scandal involved abuse by reservists and members of the Army and National Guard; the latest cases elaborated for the first time on numerous allegations of abuse by Marines.

The mistreatment occurred as early as May 2003, months before the first allegations of abuse at Abu Ghraib were recorded. And the most recent case involving prisoner abuse by the Marines occurred in June, two months after the Abu Ghraib scandal broke.
Since day one, the Pentagon's basic line has been that the abuses at Abu Ghraib were the result of "a few bad apples". Indeed, former SecDef James Schlesinger asserted that these were the acts of a few rogues intentionally put on the night shift who created an "Animal House" atmosphere. More importantly, the Pentagon has continually asserted that 1) there was no policy encouraging or abetting abuse and 2) there were no systemic problems with abuse. I've long thought this was BS. As I wrote in Slate in August 2004:
It defies both reason and common sense to cite 94 separate incidents of detainee mistreatment, yet determine there were no systemic issues (like training, insufficient troop strength, and unclear legal rules) to fault. Are there really that many bad apples in today's vaunted, all-volunteer, highly educated military? Doubtful. What's more likely is that the U.S. military has been corrupted by a morally and politically ambiguous mission, poorly trained and resourced for occupation duty, forced to work with impractical rules of engagement, and left with too few troops to do the job in Iraq. Cumulatively, all these external factors enabled a few sadistic soldiers (led by derelict officers) to do their dirty deeds at Abu Ghraib. But the Army refuses to acknowledge the role these systemic factors played, choosing instead to heap all the blame on a few junior enlisted soldiers. Those soldiers now face prison time, unlike their officers, who are being let off with administrative reprimands.

On top of this official Abu Ghraib whitewash, the Army appears intent on making other abuses go away through the prosecution of a few low-ranking soldiers. In Colorado last week, the Army announced that it would extend full immunity to three mid-level officers involved in the prosecution of three subordinates in the death of an Iraqi who was allegedly pushed off a bridge to his death. As at Abu Ghraib, the senior officers were let off with career-ending administrative punishment, instead of criminal prosecution. At a time when the world thinks quite poorly of America for its treatment of detainees and adherence to the rule of law, the U.S. Army is sending exactly the wrong message with this immunity decision and the Abu Ghraib report. Instead of promoting responsibility and the rule of law, the Army appears to care more for the Washingtonian principles of damage control and spin.
It's becoming increasingly clear that even this assessment was too charitable. My earlier analysis of Abu Ghraib focused a good deal on the leadership, resourcing and training problems in the Army Reserve MP units at that prison. Now, it's apparent that more is going on.

I don't think you can apply that same explanation to the active-duty Marine units involved in these allegations. Instead, I think you have to focus on the other set of compelling explanations -- that policies approved at the top of the Bush administration, vetted by DOD, DOJ and White House lawyers, facilitated abuses by troops in the field. These policies created an atmosphere of legal ambiguity -- and more importantly, permissiveness -- with respect to detainees. These policies explicitly stated they were designed to support the collection of human intelligence ("HUMINT"), by squeezing detainees for what they knew. But the practical effect of these memoranda and directives was to dehumanize the detainee population and communicate to the troops the message that "anything goes". In most units, solid leadership and training negated this message and maintained good order and discipline. But in a significant minority, this guidance translated into abuse. I fear there's still a lot more out there.

Tuesday, December 14, 2004

CIA memo: stay away from military interrogations
What interrogation tactics would make both the FBI and the CIA squeamish about their field officers' participation?

Douglas Jehl reports in today's New York Times that CIA field officers were given permission to abstain from military interrogations where they felt the tactics were going too far. This report follows earlier reporting by the Times in May 2004 that FBI officers had been ordered to stay out of "coercive interrogations" for fear that they might taint themselves in future criminal court proceedings. According to Mr. Jehl:
A classified directive issued by the agency's headquarters on Aug. 8, 2003, to all its personnel in Iraq advised that "if the military employed any type of techniques beyond questions and answers, we should not participate and should not be present," according to an account provided by a senior intelligence official.

In telling C.I.A. personnel to keep away from interrogations where military personnel were using harsh techniques, the directive was more restrictive than was previously known. Officials first disclosed the agency's order last September, saying that it had barred C.I.A. officers from interviewing the military's prisoners unless military officials were present.

The new disclosure is the latest sign of longstanding unease in intelligence circles about the military's interrogation techniques in Iraq. Complaints by the Defense Intelligence Agency about the rough treatment of prisoners by the same Special Operations units were made public last week in a document disclosed by the American Civil Liberties Union.

But the C.I.A. guidelines imposed for Iraq did not affect interrogations of prisoners in C.I.A. custody, including leaders of Al Qaeda being detained in secret locations around the world, officials said. Legal rulings by the Bush administration have granted the C.I.A. greater flexibility in conducting interrogations of suspected terrorists, including the use of harsh methods. The C.I.A. issued its directive on the military's prisoners in Iraq shortly after the agency's station in Baghdad complained in a July 16, 2003, cable about the use of noise, bright light and other techniques by Special Operations forces who were working in joint teams with C.I.A. personnel.

The agency also barred its employees last year from entering a secret interrogation facility in Baghdad used by Special Operations forces. The restrictive C.I.A. guidelines remain in effect, intelligence officials have said.

* * *
The cable said that the C.I.A. should not suggest, condone or concur in any interrogation techniques beyond questions and answers with prisoners in military custody in Iraq, the intelligence official said.
Comment: This provides a tiny glimpse inside the highly secretive world of interrogations, but an important one. Both the FBI and the CIA — not agencies with a good historical record when it comes to civil liberties — objected to the Pentagon's approved interrogation tactics. The FBI objected primarily for courtroom reasons; the CIA appears to object for operational reasons. Yet, both were unable to sway the Pentagon through the policy vetting process, so they simply decided to abstain from these practices in the field. The natural inference here is that the tactics approved, adopted and used by the military really did go too far, as evidenced by the FBI and CIA's refusal to play ball. Clearly, I think, the FBI and CIA cared as much about squeezing HUMINT out of foreign prisoners as the military, especially when it came to Al Qaeda members plotting against the U.S. (as opposed to insurgents in Iraq.) And yet, they either saw these interrogation methods as counter-productive, inhumane, illegal, or all of the above.