Tag: military

Telling and Fighting

There is a popular argument that, what with two wars underway, this is no time to rock the military by abolishing the “Don’t ask, don’t tell” policy and letting homosexuals serve openly. That’s basically what the secretary of defense says.

This post by Stephen Walt reminded me that the opposite is true: that wars are an opportunity to change dumb personnel policies. The end of war in Iraq will deprive advocates of equality in military service of one of their best arguments: restrictions on who the military can employ undermine the effort to win. And the best advocates for the change are current and former service members making that point.

Rachel Maddow had a good segment the other day on the topic. Her guests were a gay, Arabic-speaking lieutenant who is being booted out of the Army National Guard for coming out, and former rear admiral and now Pennslyvania congressman Joe Sestak, who is co-sponsoring legislation to change the law.

I predict that allowing gays to serve openly will be like allowing women on navy ships or even gay marriage. Lots of people fight it. Then it happens, it’s no big deal, and everyone forgets what they were so upset about.

McChrystal and Direct Action

Fred Kaplan and the New York Times say that the decision to replace General David McKiernan with Lt. General Stan McChrystal as the principle US commander in Afghanistan is another step in the COINification of the Pentagon under Robert Gates. They say we’ve replaced a conventional warfare guy with an unconventional warfare guy.

That’s too simple. McChrystal is known for his mastery of the sharp or kinetic end of the counterinsurgency mission. The command he headed from 2003 to 2008 – Joint Special Operations Command – is essentially the operational component of Special Operations Command, which has really become a fifth service. JSOC organizes special operations missions in war zones.  According to many officers, JSOC has also become enraptured with direct action. That means using intelligence from various sources to plan raids, often kicking down doors in the dead of night, interrogating people to generate more intelligence, doing it again immediately, and eventually capturing or killing insurgent leaders with the intelligence gleaned. 

Bob Woodward’s latest book argues that JSOC’s role in employing these tactics in Iraq was crucial to the supposed success of the surge. But some informed observers beg to differ, arguing that standard counterinsurgency tactics and the contributions of Iraqis themselves mattered far more.  Some complain that JSOC’s aggressive tactics and limited coordination with those in the regular chain of command undermined pacification efforts in Iraq and Afghanistan.

In the (recently released!) book on the post Cold War evolution of the US military that I co-edited, Colin Jackson and Austin Long have a chapter discussing the politics of special operations command. They argue that the direct action theory of victory in counterinsurgency is a close relative to the air force’s theory of decapitation, which says you can defeat a nation by attacking its leaders from the air.  They explain that direct action has long been the favored tactic of secret or “black” SOF organizations like Delta Force, but that the wars made it the dominant mission in SOCOM as a whole, crowding traditional “white” counterinsurgency missions like population protection, force training, and civil affairs. To them, that is a problem, because the direct action theory of victory is badly flawed.  You can’t kill your way to victory in these sorts of wars, they argue. That’s particularly true in Afghanistan, I’d add, where distance and poor roads make the exploitation of intelligence far more time-consuming.

I don’t know to what extent McChrystal shares the black SOF worldview. He would probably say that direct action is just part of the toolkit.  It is possible, however, that his appointment reflects a decision to downplay nation-building in Afghanistan and focus more on killing raids and training Afghan soldiers.

It is also interesting to speculate about what Michael Vickers (the Assistant Secretary of Defense for Special Operations, Low Intensity Conflict and Interdependent Capabilities) had to say about this. Vickers – a key advisor to Gates and a carry-over from the Bush administration – is said to be skeptical about troop surges in counterinsurgency, preferring to train local forces.

According to Greg Grant of DoD Buzz:

In a speech before a defense industry gathering last month, Vickers said he foresees a shift over time from the manpower intensive counterinsurgency campaigns in Iraq and Afghanistan to more “distributed operations across the world,” relying on close to 100 small teams of special operations forces to hunt down terrorist networks, part of a “global radical Islamist insurgency.”

I don’t like the across the world part, but if this appointment means more limited objectives in Afghanistan, it’s good news.

A final note on McChrystal: he reportedly runs many miles a day, sleeps only a few hours, and avoids eating until evening to avoid sluggishness. Apparently the iron-man thing goes over well with Rangers, but I think commanders, whose job is mostly thinking, should get a good night’s sleep and three square.

The Jurisprudence of Detention: Definitions and Cases

Almost a year has passed since the Supreme Court’s decision to extend habeas rights to Guantanamo in Boumediene. Detention policy is currently under review by interagency task forces; it is worth looking at what the developing body of detention rulings say about the future of detention.

Taking prisoners is an unavoidable part of military action. Telling our troops that they can engage identified enemies with lethal force but cannot detain them puts them in an impossible position.

But who can we hold? The Taliban foot soldier is an easy case, but as we move away from the battlefield things get a little fuzzy. A chronological review of the decisions regarding detainee status gives some insight.

Salim Hamdan

The first case comes from the military commissions convened in Guantanamo. Though it predates Boumediene, it puts the question of who is an unlawful enemy combatant in front of a judge.

Salim Hamdan was the petitioner in the Supreme Court case that invalidated military commissions established by executive order. Congress responded to his victory at the Supreme Court with the Military Commissions Act (MCA) to establish legislatively-sanctioned commissions, but their jurisdiction is limited to “alien unlawful enemy combatants.”

Following the passage of the MCA, Hamdan’s defense counsel filed a motion for an additional hearing to determine whether he was a lawful or unlawful combatant. If he was a lawful combatant, then the commission would lack jurisdiction and he might then be prosecuted in a court-martial. Lawful combatants (i) have a commander, (ii) wear uniforms or a distinctive symbol, (iii) bear their arms openly, and (iv) follow the laws of land warfare.

Captain Allred, the officer presiding, granted the defense motion.

Allred found that Hamdan’s service to Al Qaeda as Osama Bin Laden’s driver and occasional bodyguard, pledge of bayat (allegiance) to Bin Laden, training in a terrorist camp, and transport of weapons for Al Qaeda and affiliated forces supported finding him an enemy combatant. Hamdan was captured at a roadblock with two surface-to-air missiles in the back of his vehicle. The Taliban had no air force; the only planes in the sky were American. Hamdan was driving toward Kandahar, where Taliban and American forces were engaged in a major battle. The officer that took Hamdan into custody took pictures of the missiles in Hamdan’s vehicle before destroying them.

Hamdan’s past association with the Ansars (supporters), a regularized fighting unit under the Taliban, did not make him a lawful combatant. Though the Ansars wore uniforms and bore their arms openly, Hamdan was taken into custody in civilian clothes and had no distinctive uniform or insignia.

Based on his “direct participation in hostilities” and lack of actions to make him a lawful combatant, Captain Allred found that Hamdan was an unlawful enemy combatant.

Decisions Under the Enemy Combatant Definition

Following Boumediene, detainees have had their cases heard by federal judges. The District Court for the District of Columbia adopted and applied the following definition, and the government need only prove it by a preponderance of the evidence:

An “enemy combatant” is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

District Judge Richard J. Leon moved through these cases quicker than his colleagues and gives us several decisions to look at.

Lakhdar Boumediene, et al.: Five ordered released, one detained. This is the set of six petitioners that won the right to habeas corpus hearings at the Supreme Court. They were picked up in Bosnia and allegedly planned to travel to Afghanistan to fight against American forces. Judge Leon ordered five of the six released because the word of an unnamed informant was simply not enough to justify their detention. Since the evidence was insufficient to determine that a plan to travel to Afghanistan existed, Judge Leon did not reach the question of whether such a plan would constitute “support.” Leon found that the sixth man, Belkalem Bansayah, was an enemy combatant based on corroborating sources and evidence that he was adept in using false passports in multiple fake names and was facilitating the travel of others to fight in Afghanistan. This constituted “support” necessary to find him an enemy combatant.

Hisham Sliti: One detained.  Sliti is a Tunisian who traveled from London to Afghanistan on a false passport. He was detained in 2000 by Pakistani authorities because of his false passport and had an address book with contact information for radical extremists. He escaped back into Afghanistan and was later re-captured fleeing the American military in 2001. Judge Leon found that he had traveled to Afghanistan with the financial support of extremists with well-established ties to Al Qaeda, spent time with Al Qaeda-affiliated radicals, stayed at a guesthouse associated with Al Qaeda that served as barracks for terrorist training camps, and that other guests at the house were instrumental in creating terrorist cells. By his own admission, he knew the location, appearance, and code words used by those attending the nearby training camp.

Moath Hamza Ahmed al Alwi: One detained. Al Alwi is a Yemeni who traveled from Saudi Arabia to Afghanistan to fight alongside the Taliban against the Northern Alliance. Judge Leon found that al Alwi could remain in custody based on the evidence that he had trained at Al Qaeda camps, stayed at Al Qaeda guesthouses, fought on two fronts with the Taliban, and did not leave Afghanistan until his Taliban unit was bombed on two or three occasions by American aircraft.

Mohammed el Gharani: One ordered released.  El Gharani is a Saudi who went to Pakistan around 2001. The government alleged that he had been a member of an Al Qaeda cell in London, stayed at an Al Qaeda-affiliated guesthouse, and fought American forces at the battle of Tora Bora. Judge Leon did not find these claims credible, as all of them were based on the word of fellow detainees. The government also alleged that he had been a courier for Al Qaeda, but had insufficient evidence to back up this claim.

In the above cases, six detainees have been ordered released and three met the criteria to be classified as “enemy combatants.”

Transition From “Enemy Combatant” to “Substantial Support”

The Obama administration has since dropped the term “enemy combatant” and changed its claim of detention authority:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.

The first decision under the new definition came down from District Judge Ellen Huvelle.

Yasin Muhammed Basardh: One ordered released. Basardh is a Yemeni who was arrested in early 2002 and transported to Guantanamo Bay. He cooperated with detention authorities, giving information about his fellow detainees. As a result, other detainees physically assaulted him and threatened to kill him. Judge Huvelle determined that widespread disclosure of Basardh’s cooperation with the government renders his prospects for rejoining terrorists “at best, a remote possibility.”

Judicial Review of the Authority to Detain

The definitions of “enemy combatant” and the power claimed by the Obama administration are very similar, and the addition of “substantially” is probably only going to affect marginal cases.

A recent review of the revised claim of detention power broadly approved the government’s power of detention. District Judge Reggie B. Walton accepted, in a slightly modified form, the general power of the government to detain those who have participated in hostilities. In doing so, he rejected a detainee’s claims that the Authorization for Use of Military Force passed after 9/11 did not allow military detention and that detainees must be tried in a civilian court or released.

Judge Walton adopted the following definition for detention decisions:

[I]n addition to the authority conferred upon him by the plain language of the AUMF, the President has the authority to detain persons who were part of, or substantially supported, the Taliban or al-Qaeda forces that are engaged in hostilities against the United States or its coalition partners, provided that the terms “substantially supported” and “part of” are interpreted to encompass only individuals who were members of the enemy organization’s armed forces, as that term is intended under the laws of war, at the time of their capture.

Judge Walton did limit the government’s detention authority to those part of the “command structure” of Al Qaeda and the Taliban. This precludes detaining “[s]ympathizers, propagandists, and financiers” that may be part of enemy organizations in an abstract sense but who are not part of the organizations’ command structure. Judge Walton also did not resolve the issue of organizations and individuals “associated” with the Taliban and Al Qaeda.

Though Judge Walton rejected the petitioners’ “direct participation in hostilities” standard for detention in favor of the government’s “substantial support” standard, he explicitly authorized detention of an Al Qaeda “member tasked with housing, feeding, or transporting” members of the organization. An Al Qaeda cook who trained at a terrorist camp can be detained just as “his comrade guarding the camp entrance.”

The competing definitions can often arrive at the same conclusion. Captain Allred determined that Salim Hamdan was an unlawful enemy combatant for a combination of the “substantial support” activities under the “direct participation in hostilities” standard.

Conclusion

The cases above illustrate that the general principles of detention have not changed significantly with adjusted definitions. The terms “enemy combatant,” “direct participation in hostilities,” and “substantial support” will be interpreted by judges on a case-by-case basis much like a finding of probable cause to issue a warrant or justify a search.

Pakistan Troops Pour into Swat Valley

The Associated Press reports that Pakistani troops have taken the fight to militants in the Swat valley, ending a three month truce between the government and Taliban forces.

As I argued in the Washington Times almost a year ago, Pakistani government peace deals with militants have a tendency to collapse. Thus, we shouldn’t be too surprised to see the latest “Shariah for peace deal” in Swat already begin to fray.

With this in mind, U.S. policymakers and defense planners must keep in mind the constraints Pakistani leaders are operating under. After 9/11, Pakistan was caught in an unenviable and contradictory position: the need to ally openly with the United States and the desire to discreetly preserve their militant assets as a hedge to Indian influence.

For example, Maulana Fazlur Rahman, who heads Pakistan’s Islamist political party Jamiat Ulema-i-Islam, led large anti-US, anti-Muaharraf, and pro-Taliban rallies in major Pakistani cities after the U.S. began bombing Taliban strongholds in Afghanistan. JUI and other influential Islamist organizations fiercely criticized Musharraf and the military for aligning with the United States and Pervez Musharraf himself was condemned within Pakistan for aligning with America in the war on terror. This dynamic has not gone away.

As I argue here, Pakistan’s six-decade rivalry with India is the biggest impediment to success in Afghanistan. It’s an open secret that elements of Pakistan’s military-dominated national intelligence agency, Inter-Services Intelligence (ISI), assist the powerful jihadist insurgency U.S. and NATO troops are fighting in Afghanistan; Pakistan’s objective is to blunt the rising influence of their rapidly growing nemesis, India, which strongly supports Afghan President Hamid Karzai’s regime. Thus far, the United States has been unable to encourage Pakistan to ignore its traditional rival and ultimately, Pakistan’s civilian leaders and defense planners must determine if insurgents or India poses a greater threat.

Unfortunately, aerial drone strikes and other stop-gap measures do little to address the strategic drift between Washington and Islamabad. Unless President Obama can reassure hawks within Pakistan’s military and intelligence apparatus that India no longer poses an existential threat to their country (a promise impossible to guarantee) then the U.S.-NATO stalemate in Afghanistan will persist.

Torture? No.

Charles Krauthammer’s recent column tells us that the wisdom of torture is undeniable. According to Krauthammer, there are two situations where torture is justified: the ticking time bomb scenario and when we capture high-ranking terrorists and conclude that giving them the third degree may save lives. Furthermore, it would be “imprudent” for anyone who would not use torture to be named the commander of Central Command (CENTCOM), the military organization in charge of American forces in the Middle East.

The generals who have been in charge of CENTCOM and other national security officials disagree.

Here is a video of General Petraeus, current commander of Central Command, saying that American forces cannot resort to torturing prisoners:

The open letter Petraeus mentions in the video is available here. He admonishes our troops to treat prisoners humanely. “Adherence to our values distinguishes us from our enemies.”

Former CENTCOM commanders Anthony Zinni and Joseph Hoar don’t endorse torture either, evidenced by their open letter (along with dozens of other former general officers) to Congress asking that the CIA abide by the Army interrogation manual.

Hoar and former Commandant of the Marine Corps Charles Krulak wrote separately to denounce torture:

As has happened with every other nation that has tried to engage in a little bit of torture – only for the toughest cases, only when nothing else works – the abuse spread like wildfire, and every captured prisoner became the key to defusing a potential ticking time bomb.

So, once we sign off on the ticking time bomb scenario, the rationalization spreads to whenever we think it may save lives.  Sound familiar?

These former commanders are not alone.  Colonel Morris Davis, former chief prosecutor at Guantanamo Bay, also had some words on the subject. “We can never retake the moral high ground when we claim the right to do unto others that which we would vehemently condemn if done to us.”

Malcolm Nance, former head of the Navy’s Survival, Evasion, Resistance, and Escape course (where sailors are trained in resisting interrogation techniques, including waterboarding), seems to know a thing or two about the topic. “I have personally led, witnessed and supervised waterboarding of hundreds of people.” He roundly denounces the use of waterboarding as wrong, ineffective, and counterproductive.  Just for the record, water actually enters the lungs of a waterboarding victim.  This is not simulated drowning, but controlled drowning. Read the whole thing.

Krauthammer’s column gives the impression that all national security experts support making torture our national policy. Wrong.

Republicans Tell America: Trust Us with Your National Security Again

The Republican Party hasn’t been doing well as of late.  A botched governing majority, a lost reputation, two lost legislative elections, two lost congressional majorities, a lost presidential election, a lost Pennsylvania senator, and no relief in sight.  So what does the GOP congressional leadership do?  Play the national security card.

Reports the New York Times:

Stymied in so many of their efforts to put President Obama and Democrats on the defensive, Republicans are returning to national security, an issue that has served the purpose well for them in the past.

Trying to raise doubts about Mr. Obama’s ability to protect the nation, they have raised the specter of terror suspects transferred from the detention facility at Guantánamo Bay, Cuba, to prisons in American communities, issued warnings that the release of memorandums detailing secret interrogation methods has put Americans at risk, and presented a video montage ending with the Pentagon in flames on Sept. 11, 2001, and the question, “Do you feel safer?”

“I think what I’m trying to do here,” Representative John A. Boehner of Ohio, the Republican leader, said in defending the video he and fellow Republicans have been circulating, “is push the administration to tell us, What is the overarching strategy to take on the terrorists and defeat them and to help keep America safe?”

I have a lot of bad things to say about both parties on foreign as well as domestic policy.  But it’s hard for me to imagine the previous eight years of Republican governance as a golden era for national security.  First there was 9/11.  Perhaps it is too much to expect the Bush administration to have prevented the terrorist atrocity, but the administration did nothing over the Clinton administration to improve American defenses to prevent such attacks.

Then there was diverting troops and attention from Afghanistan before that war was finished, to invade Iraq.  The Iraq debacle occupies a category all its own.  Policy towards North Korea was spectacularly misguided and incompetent:  refusing to talk to the North for years as it generated nuclear materials, before rushing to embrace Pyongyang while offering few immediate benefits to entice the North to change its behavior.  The results of this strategy were, unsurprisingly, negligible.

Refusing to talk to Iran had similar consequences.  Washington refused to engage Syria, even though Israel was willing to talk to Damascus.  The Bush administration further tightened the embargo against Cuba, again achieving nothing.  The administration also continued the Clinton administration’s policy of estranging Russia by expanding NATO ever closer to Moscow, incorporating countries that are security black holes, offering geopolitical conflicts with no corresponding military benefits.

In the midst of all this, the GOP in both the executive and legislative branches led a sustained assault on civil liberties and limited, constitutional government even when doing so did nothing to forestall another terrorist attack.

Given all this, is should surprise no one that the Republicans are no longer in control of government.

The Democrats may prove to be worse on all counts. I’ve long learned not to assume that things could not get worse.  Still, it is hard to take seriously Republican demands that the American people trust them with the nation’s security.  After all, look at what the Republicans did when they actually held power.

New at Cato

New articles, videos and Podcasts today:

  • In the Chicago Tribune, David Boaz questions whether Arlen Specter’s party change will take the Senate further to the left.
  • Watch Brandon Arnold discuss Obama’s first 100 days in office on BNN Canada.
  • For  more on Obama’s first 100 days, watch Gene Healy’s interview on AP TV.
  • Chris Preble will be on Capitol Hill again on May 11 with Jim Harper to explain why overreaction and misdirection play into the strategy of terrorism.
  • In Thursday’s Cato Daily Podcast, legal scholar Ilya Shapiro discusses how a Supreme Court decision could change racial preference hiring laws in the United States.