Defense Department legal memorandum provided a roadmap for getting away with torture.

Jess Bravin reports in Monday's Wall Street Journal (subscription required) about a classified legal memorandum prepared by the Pentagon's Office of General Counsel that appears designed to find every legal workaround possible to justify coercive interrogation and torture at Guantanamo Bay. This report comes in the wake of disclosures about other memoranda — one written in early 2002 by UC Berkeley law professor John Yoo while with the Justice Department's Office of Legal Counsel, and a second written by White House Counsel Alberto Gonzales — justifying the White House's overall Guantanamo Bay plan. This latest memo, signed in April 2003, goes much further than those though — it specifically authorizes the use of torture tactics, up to and including those which may result in the death of a detainee.

The report outlined U.S. laws and international treaties forbidding torture, and why those restrictions might be overcome by national-security considerations or legal technicalities. In a March 6, 2003, draft of the report reviewed by The Wall Street Journal, passages were deleted as was an attachment listing specific interrogation techniques and whether Mr. Rumsfeld himself or other officials must grant permission before they could be used. The complete draft document was classified "secret" by Mr. Rumsfeld and scheduled for declassification in 2013.

The draft report, which exceeds 100 pages, deals with a range of legal issues related to interrogations, offering definitions of the degree of pain or psychological manipulation that could be considered lawful. But at its core is an exceptional argument that because nothing is more important than "obtaining intelligence vital to the protection of untold thousands of American citizens," normal strictures on torture might not apply.

The president, despite domestic and international laws constraining the use of torture, has the authority as commander in chief to approve almost any physical or psychological actions during interrogation, up to and including torture, the report argued. Civilian or military personnel accused of torture or other war crimes have several potential defenses, including the "necessity" of using such methods to extract information to head off an attack, or "superior orders," sometimes known as the Nuremberg defense: namely that the accused was acting pursuant to an order and, as the Nuremberg tribunal put it, no "moral choice was in fact possible."

* * *
The report then offers a series of legal justifications for limiting or disregarding antitorture laws and proposed legal defenses that government officials could use if they were accused of torture.

A military official who helped prepare the report said it came after frustrated Guantanamo interrogators had begun trying unorthodox methods on recalcitrant prisoners. "We'd been at this for a year-plus and got nothing out of them" so officials concluded "we need to have a less-cramped view of what torture is and is not."

* * *
The lawyers concluded that the Torture Statute applied to Afghanistan but not Guantanamo, because the latter lies within the "special maritime and territorial jurisdiction of the United States, and accordingly is within the United States" when applying a law that regulates only government conduct abroad.

Administration lawyers also concluded that the Alien Tort Claims Act, a 1789 statute that allows noncitizens to sue in U.S. courts for violations of international law, couldn't be invoked against the U.S. government unless it consents, and that the 1992 Torture Victims Protection Act allowed suits only against foreign officials for torture or "extrajudicial killing" and "does not apply to the conduct of U.S. agents acting under the color of law."

Analysis: Normally, I would say that there is a fine line separating legal advice on how to stay within the law, and legal advice on how to avoid prosecution for breaking the law. DoD and DoJ lawyers often provide this first kind of sensitive legal advice to top decisionmakers in the Executive Branch (regardless of administration) who want to affirm the legality of their actions. Often times, memoranda on these topics can be seen both ways, depending on your perspective. I tend to think that the Yoo memorandum and Gonzales memorandum leaned more heavily towards providing advice about how to stay (barely) within the bounds of the law — not how to break the law and get away with it. But this DoD memo appears to be quite the opposite. It is, quite literally, a cookbook approach for illegal government conduct. This memorandum lays out the substantive law on torture and how to avoid it. It then goes on to discuss the procedural mechanisms with which torture is normally prosecuted, and techniques for avoiding those traps. I have not seen the text of the memo, but from this report, it does not appear that it advises American personnel to comply with international or domestic law. It merely tells them how to avoid it. That is dangerous legal advice.

Second, I'd like to counterpose one other key point from the memo against an excerpt from the U.S. Constitution. Compare the following line from the WSJ story:

To protect subordinates should they be charged with torture, the memo advised that Mr. Bush issue a "presidential directive or other writing" that could serve as evidence, since authority to set aside the laws is "inherent in the president."

with this passage from Art. II, Sec. 3 of the U.S. Constitution, regarding Presidential power:

Section 3.

He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

The italicized passage is commonly called the "take care" clause by Constitutional Law scholars. It is not a permissive grant of power — it is an affirmative duty to enforce the laws and ensure that subordinate officers of the government do the same. It is the basis for Presidential command and control over the executive branch, and it has been invoked on many occasions to justify prosecution of law violation within the branch. President Truman tried to invoke this clause, in conjunction with his broader power as Commander-in-Chief, to justify the emergency seizure of steel mills during a labor stoppage during the Korean War. The Supreme Court sharply rebuked him, saying that he lacked the Constitutional authority to do so. (See Youngstown v. Sawyer, aka The Steel Seizure Case). I have read a fair amount on this particular area of Constitutional Law, and think the DoD memo gets it wrong. I am not aware of any legal authority which supports the proposition that the President has inherent power to set aside the laws when he deems it necessary. If anything, the opposite is true, according to Supreme Court precedent and treatises on Constitutional Law by scholars such as Joseph Story. Even in wartime, the President's authority to act is limited by the Constitution. There is no general Presidential power to nullify the laws of the United States, nor the laws of war which have been codified in treaties. Advice to the contrary is wrong, and any actions which follow this advice are probably unlawful as well.

More to follow...

America lost one of its most popular — and most controversial — presidents today with the death of Ronald Reagan at his Bel Air home. The Washington Post has a lengthy obituary from reporter and Reagan biographer Lou Cannon, which sums up the man's legacy well.

I remember President Reagan as the president I grew up with. The images of his tenure in the White House formed my expectations of what a President should look like. My earliest political memories are of the 1980 election, and the release of our hostages in Iran that followed shorly after President Reagan's victory that year. I remember other images as well: President Reagan presiding over the flag-draped caskets of our Marines killed in Beirut; President Reagan standing before Brandenburg Gate telling Mr. Gorbachev to tear the Berlin Wall down; President Reagan relaxing on his Santa Barbara ranch; the President speaking to the nation from the Oval Office. I wasn't old enough then to understand the President's policies, let alone evaluate them critically. But I was old enough to appreciate the image of a president. For better or worse, I now judge political leaders against the iconic style that President Reagan pioneered in office.

Historians have already started to fight over President Reagan's legacy, and they will doubtless have smarter things to say than me. Now that I'm a little older, and I've read a couple of Reagan biographies, I'm a little less in awe of the Reagan presidency than I was during it. I am proud of the way we won the Cold War under his leadership. But I regret the national debt he left my generation with, and I lament some of the domestic programs he pursued. Ultimately, I still believe that Ronald Reagan was a memorable President, and a great American, and I think that history will judge him evenly in the long run.

Michael Gordon reports in Thursday's New York Times that the Pentagon has plans to remove its two combat divisions from Germany after the end of their current tours in Iraq. These two divisions, including roughly 40,000 organic personnel and up to double that number in echelon-above-division support personnel, will be permanently restationed in the United States. (Note: buy property near whatever bases they're being moved to.)

The proposal to withdraw the divisions comes at a time when the Army is stretched thin by deployments in Iraq and Afghanistan. But Pentagon officials said the move, which has been under consideration for some time and involves forces in Asia as well as in Europe, is unrelated to the current fighting.

Under the Pentagon plan, the Germany-based First Armored Division and First Infantry Division would be returned to the United States. A brigade equipped with Stryker light armored vehicles would be deployed in Germany. A typical division consists of three brigades and can number 20,000 troops if logistical units are included, though these two divisions have only two brigades each in Germany, with the other brigade in the United States.

In addition, a wing of F-16 fighters may be shifted from their base in Spangdahlem, Germany, to the Incirlik base in Turkey, which would move the aircraft closer to the volatile Middle East; a wing generally consists of 72 aircraft. Under the Pentagon plan, the shift would be carried out only if the Turks gave the United States broad latitude for using them, something that some officials see as unlikely.

The Navy's headquarters in Europe would be transferred from Britain to Italy. Administration officials are also discussing plans to remove some F-15 fighters from Britain and to withdraw the handful of F-15 fighters that are normally deployed in Iceland, though final decisions have not been made.

For Defense Secretary Donald H. Rumsfeld, the reasons for the reshuffling seem clear and compelling: that the purpose of military units is to fight and win the nation's wars, and they should be stationed in locations that enable the United States to use them most efficiently and with minimal political restrictions.

"It's time to adjust those locations from static defense to a more agile and a more capable and a more 21st-century posture," Mr. Rumsfeld told reporters on Thursday on a flight to Singapore.

Analysis: Although this move coincides with the ongoing counter-insurgency effort in Iraq, it has in fact been planned for some time, and reflects a much larger change in America's posture around the world. The plans to move U.S. forces around in Europe have been around for some time, and so have the plans to realign U.S. forces in the Pacific. What we have not known is the definitive end-state for these moves — where the troops will go when they leave Germany? For a while, it was thought that the U.S. would open new bases in Southern and Eastern Europe, possibly in new NATO member countries like Poland. However, it now appears that this plan has been shelved, and that the majority of U.S. combat power in Europe will be returning to the continental United States. That's a big development, with implications on many levels.

First, this is the consummation of a long trend in America's military away from a "forward deployed" force to a "power projection" force. During the Cold War, we retained forces in places like South Korea and Germany near the places where they would actually fight, and we trained on how we would deploy additional forces there (e.g. the REFORGER and FOAL EAGLE exercises). A great deal of our military was "forward deployed", meaning that it was already where it needed to be should the balloon go up. This was only possible because we knew where we were going to fight, and whom we were going to fight. It was a Cold War luxury that our Army could position itself to fight the Soviet hordes streaming through the Fulda Gap. When the Berlin Wall came down and the Soviet Union disintegrated as a threat, this luxury went away. Now, our military must be ready to deploy anywhere in the world to conduct any kind of operation ranging from humanitarian assistance to major combat operations. A forward deployed posture would be anachronistic, because the military would be wedded to bases and defensive positions with no objective relationship to the need to be rapidly deployable. Instead, tomorrow's military must array itself in order to meet this goal, such as by basing itself near major ports and airstrips. The Pentagon has been working on this problem since the first President Bush was in office, and it developed a lot of these plans during the Clinton Administration, so we should not necessarily tie this move to the current White House.

Second, this realignment makes a lot of sense — but only if you set the conditions for success by purchasing the systems necessary to support a "power projection" force. You can't just move forces to the U.S. and expect them to acquire a deployment capability, even if they're sitting on the docks in Long Beach, California. To build a meaningful deployment capability, you must also acquire "strategic lift" capability: fast cargo ships, cargo aircraft, rail lines between bases and ports, etc. The U.S. has a lot of this stuff, but it does not have enough for real rapid deployment capability. I have said it before, and I will say it again. The cheapest and most efficient way to buy rapid deployment forces is not to build a new kind of Army brigade or move forces around the world — it's to buy more C-17 and C-5 aircraft, and more fast cargo ships. These are expensive on the front end, and these cargo vehicles may not get as much use in peacetime (a possible argument for putting them in the USAF Reserve). But they will earn their keep in wartime, by enabling the President to move forces around the world very quickly and resupply them from air or sea depending on the situation. Similarly, the U.S. must build a deployment infrastructure capable of supporting the rapid movement of its forces. Ask any former military officer what this means and they'll tell you: rail lines, cargo containers, lots of rehearsals, ready-to-execute contracts with bonded carriers, etc. You can't just Fedex the Army or Marine Corps somewhere — it takes a very deliberate and complex effort to move a major military unit. If we truly want to create a "power projection" force, we must invest in it.

Third point, which picks up on part of the first: this move will have major political and diplomatic consequences. The NYT article makes this point quite well, I think, as do earlier pieces that I've reported on. Pulling U.S. troops out of Europe, or South Korea, represents a major disengagement from those nations. You cannot get around this. We may try to offset it with frequent exercises or other means, but there's simply no substitute for having your own young men and women living in a foreign land with lots of military equipment. It directly engages us with the nation and the region where our troops live, and plants our flag in a very visible way. Sometimes, these bases become a lightning rod for criticism. But in the larger scheme of things, that's not so important. What is important is the stake these bases give us around the world. By pulling U.S. troops out of Europe, we are pulling our stake out of Europe too. I'm not sure that I agree with that. I supported the move to take U.S. troops out of Germany and move them to bases that were better suited for rapid deployment. But pulling our land forces out of Europe altogether might be unwise, particularly at a time when we need to be (re)building bridges to Europe after the war in Iraq. According to two retired 4-star officers with recent experience in Europe, the strategic risk of this move may be too great:

"From a strategic point of view, there is more sense in moving things out of Germany and having something in Bulgaria and Romania," said Joseph Ralston, a retired general and a former NATO commander.

* * *
Montgomery Meigs, a retired general and the former head of Army forces in Europe, said substantial reductions in American troops in Europe could limit the opportunities to train with NATO's new East European members and other allies. While American forces can still be sent for exercises from the United States, he said, it will be more difficult and costly to do so.

"You will never sustain the level of engagement from the United States that you can from Europe," he said. "We will not go to as many NATO exercises or have as many training events."

Despite the recent tensions over Iraq, NATO remains our strongest alliance and partner in the world, and I fear that we may do long-term damage to that alliance if we execute this plan as written. It looks to me like a U.S. disengagement from Europe, and from the world generally. And though these plans may have been conceived during an earlier administration, they are now being executed during the Bush Administration. I think that world observers will associate this move with the unilateral tendencies of this administration, and see these realignment plans in the context of other recent U.S. policies. They may ultimately perceive us as disengaging from the world, or at least, focusing on places where a demonstrable national interest exists rather than a larger global security interest. I don't think that's a good perception to foster, and I think we should be wary of any policy that presents that face to the world.

More to follow...

Update: Greg Jaffe, who's traveling with Defense Secretary Donald Rumsfeld on his trip through Asia, reports on a related development in today's Wall Street Journal (subscription required). Part of this new post-Cold War paradigm is the need to focus on new threats -- whatever and wherever they might be. Towards that end, the SecDef is making an effort to diplomatically secure a key strait with important military and economic implications.

SINGAPORE -- U.S. Defense Secretary Donald Rumsfeld opened a five-day swing through Asia to enlist support from Far Eastern allies in the war on terror and especially in a U.S.-led effort to safeguard the Strait of Malacca, a vital trade route.

U.S. officials are concerned about the vulnerability of the waterway between the Indonesian island of Sumatra and the Malay Peninsula, which is a trade route for China, Japan, Korea and Singapore and a pass-through point for half of the world's oil. Its security is likely to be discussed at a meeting of Asian defense leaders in Singapore, called the Shangri-la Dialogue, at which Mr. Rumsfeld was scheduled to speak this weekend.

Can we reconcile the war on terrorism with the U.S. Constitution?

My gut tells me that Jose Padilla, the alleged "dirty bomber" being held as an unlawful enemy combatant, is probably a bad person. He may be guilty of various crimes ranging from conspiracy to provision of material support to terrorism. However, I am not yet convinced that the exigencies of his case warrant the treatment he has been given by the Justice Department and Pentagon with the endorsement of the White House.

Yesterday, the Justice Department announced that it had the goods on Mr. Padilla in a big way. In addition to his planned mission of detonating a radiological dispersal device ("RDD" or "dirty bomb") in a major U.S. city, Mr. Padilla was to bomb apartment buildings by turning natural gas lines and sealed apartments into improvised explosive devices. How did the Justice Department learn of this information? Simple — it questioned Mr. Padilla until he told them.

Officials disclosed for the first time that Mr. Padilla, a former Chicago gang member accused of becoming an operative for Al Qaeda, had cooperated extensively with American interrogators after his capture in May 2002. While the broad outline of the accusations against Mr. Padilla has been known for two years, the declassified documents provided new details about plots to detonate a radiological "dirty bomb" or blow up an apartment building, perhaps in New York City.

"We now know much of what Jose Padilla knows, and what we have learned confirms that the president of the United States made that right call and that that call saved lives," James B. Comey, the deputy attorney general, said in releasing the declassified documents.

* * *
Mr. Comey said that had the Bush administration brought criminal charges against Mr. Padilla in the beginning, rather than jailing him as an enemy combatant, it might never have found out about his plotting.

"He would very likely have followed his lawyer's advice and said nothing, which would have been his constitutional right," Mr. Comey said. "He would likely have ended up a free man, with our only hope being to try to follow him 24 hours a day, seven days a week and hope - pray really - that we didn't lose him."

An AP story quotes Mr. Comey in more detail, leaving absolutely no doubt that the means chosen in Mr. Padilla's case would not stand up in court.

"I don't believe that we could use this information in a criminal case, because we deprived him of access to his counsel and questioned him in the absence of counsel," Comey said.

"The questioning of Jose Padilla ... was not undertaken to try and make a criminal case against Jose Padilla. It was done to find out the truth about what he knew about al-Qaida and threats to the United States."

So, let's be clear here. Mr. Padilla was originally detained on a material witness warrant in May 2002, and given access to counsel. Presumably, he then clammed up. President Bush designated Mr. Padilla as an unlawful enemy combatant on June 9, 2002. He was then rendered to DoD custody in Charleston, South Carolina, where he has been since. It appears that Defense Department personnel (probably working with Justice Department, CIA and OGA personnel) have questioned him for the past two years in DoD custody — in the absence of counsel, a Miranda warning, or any other procedural device which might protect some of Mr. Padilla's rights under the 5th Amendment. Now, amidst the prison scandal at Abu Ghraib and serious questions about the President's Constitutional authority to act this way, the Justice Department releases this information to basically say "Look, our extreme tactics were necessary in this case — and effective too."

I think we should ask ourselves if this is really true. We don't have much in the way of corroborating evidence so far to back up these allegations. It's possible that such information is still being held closely by the Justice Department, either to protect sources and methods or to protect ongoing investigations. But historically, statements gathered with even a scintilla of coercion have been suspect. This is part of the rationale for the Confrontation Clause in the 6th Amendment, based in part on an erroneous out-of-court statement made in the trial of Sir Walter Raleigh. This is also the reason for the modern evidence rule requiring indicia of reliability for the admission of a statement in these circumstances. There is a gaping lacuna in the Justice Department's statements regarding Jose Padilla — the presence of evidence which backs up what we learned through interrogation.

There is a term of art that lawyers use to refer to a evidence that can only be proven worthy of admission by referral to the questionable evidence itself: "bootstrapping". If there was ever a textbook case of bootstrapping, this is it. The only evidence against Mr. Padilla consists of intelligence gathered from the (presumptively unconstitutional) interrogation of top Al Qaeda leaders like Khalid Sheikh Mohammed, and the interrogation of Mr. Padilla himself. The only way to prove this evidence's value and reliability is by reference to other illegal evidence. (There may, of course, be FISA-derived or other secret evidence in this case that we don't know about, but DOJ hasn't said that yet.) So in the end, we're left with basically no evidence against Mr. Padilla that will stand up in court, because the key pieces of evidence were gathered in violation of the Constitution.

Ironically, good police work questioning (within the Constitution's bounds) might have been able to crack Mr. Padilla, while leaving open the possibility of a criminal trial should he eventually be charged in federal court. But of course, this evidence (gathered through admittedly unconstitutional means) is not being used in court — it's being used to justify Mr. Padilla's continued detention without any court proceedings at all. Typically, you need probable cause to detain someone and to confine them, and that probable cause is eventually tested in court during a preliminary proceeding. Here, it appears that the probable cause is being derived from post-detention interrogations and secret interrogations of other individuals. I can't figure out which cart is before which horse, because so many things are backwards here.

But wait — it gets worse. In case you think the only things being violated here are Mr. Padilla's 5th Amendment rights, think again. Dahlia Lithwick reminds us in this excellent Slate essay that there's a lot more at stake here — the 6th Amendment's confrontation clause, the Art. I, Sec. 9 right to habeas corpus, and the general rule of Art. III that the U.S. courts shall have jurisdiction over all cases and controversies arising in the United States.

The U.S. Constitution didn't simply hatch out of an egg one morning. Like the Magna Carta, the Bill of Rights was largely conceived to correct for failures of earlier systems. In 1603 Sir Walter Raleigh was tried for treason and not permitted to cross-examine his accuser. This, it turns out, engendered unreliable evidence. The Sixth Amendment's confrontation clause was the constitutional remedy for this problem. Unremitting and unwanted prosecutorial interrogation could lead to false confessions. This made for unreliable evidence. The Fifth Amendment was, in part, the constitutional remedy for this. Years of delay prior to trials degraded evidence. The Sixth Amendment's right to a speedy trial was the constitutional remedy for this. Indefinite government detention without charges led to innocent men languishing in prison without recourse. The right to habeas corpus is thus codified in Article I, Section 9 of the Constitution to remedy this. We sometimes forget that the purpose of these and other constitutional protections is not only to let guilty guys roam free (attractive though that prospect may seem), the purpose is also to protect the quality of the evidence used in criminal trials. A conviction based on a tortured confession isn't justice. It's theater.

So... what's a nation to do with enemies like this? That's a really tough question. Clearly, there is a need to detain enemy foot soldiers in order to prevent future acts of terrorism, and I'm inclined to let Justice Department officials use devices like material witness warrants to do so if it means preventing another attack. And clearly, there is a need for questioning in order to gather intelligence about future attacks. But let's not throw away our Constitution in the process, particularly when we have developed extraordinarily sophisticated (and legal) means of interrogation that will not foreclose the possibility of a criminal trial. As the New York Times reports: "Officials disclosed for the first time that Mr. Padilla, a former Chicago gang member accused of becoming an operative for Al Qaeda, had cooperated extensively with American interrogators after his capture in May 2002." That's not surprising — most foot soldiers do cooperate when questioned. Especially when they're squeezed by seasoned investigators who have cracked organized crime rings, drug rings, gangs, and other criminal networks formerly thought too tough for conventional (and Constitutional) police tactics.

Using extra-Constitutional tools in the Padilla case has not necessarily accomplished anything more than seasoned FBI agents and Assistant U.S. Attorneys could have done. But what it has done is create a losing dilemma for the Justice Department. In a case like this, where all of the evidence has been either tainted by torture or tainted by poor process, the only options are to detain Mr. Padilla indefinitely as an enemy combatant or release him onto the street. Prosecution in federal court isn't a viable option anymore in this situation. The Supreme Court may well hold the first option unconstitutional this summer, forcing the Justice Department to file charges (which will likely be dismissed for lack of admissable evidence) or release Mr. Padilla.

Update: My friend over at JAG Central (now at its new location) reminds me of DOJ's response — namely, that the 5th Amendment is inapplicable because Mr. Padilla is being held as an unlawful enemy combatant. Indeed, he's right about that. We don't extend the 5th Amendment protection to combatants being held as such; prisoners of war have rights and privileges under the 3rd Geneva Convention, but not the U.S. Constitution. This, however, is a gray area where it's not clear that the executive branch has the power to detain Mr. Padilla as an enemy combatant, or to deny him his Constitutional rights, so I'm not ready to accept that construct.

Moreover, I think the character of DOJ's comments here is important. They're releasing this information for specific reasons. Namely, I think the Justice Department is trying to establish three things in the court of public opinion:

1. "Padilla was a bad guy, and we had to detain him."
2. "Our means were effective — we detained the right guy, and our interrogations produced valuable intel to prove he was the right guy."
3. "We have enough evidence of Padilla's bad conduct that we could have prosecuted him if we wanted to."

Of these, I think that only the first statement has any legitimacy. The second is dubious, both because it's not clear these statements were accurate, and because of the extra-legality of the means. The third is absolute bunk. We only know (in a very loose epistemological sense) these things because we used means which preclude the use of this evidence in court. And we don't really "know" them at all (in a legal sense) because they've never been tested by adversarial review or found as fact by a jury or judge.

Sometimes, articles run in different publications on different days that really should've run next to each other. That's how I feel about this New York Times op-ed and this National Review essay, both of which concern American soldiers and the war in Iraq. Each article gives us a piece of the larger story, which as I see it, is the story of how American soldiers persevere in the face of adversity.

The NYT op-ed comes from former Army captain Andrew Exum, who led infantrymen of the 10th Mountain Division in combat early in the war in Afghanistan. Mr. Exum makes a very important point regarding military overstretch — namely, that we have taken on so many military obligations that we cannot maintain an all-volunteer force anymore. Instead, we must resort to personnel policies known as "stop loss" and "stop move" in order to man the units now fighting in Southwest Asia. (Update: the AP reports that the Army is expanding its stop-loss policies.)

CHATTANOOGA, Tenn. — Many Americans, feeling that we did not have enough troops in Iraq, were pleased when the Defense Department announced last month that 20,000 more soldiers were being sent to put down the insurgency and help rebuild the country. Unfortunately, few realized that many of these soldiers would serve long after their contractual obligations to the active-duty military are complete. In essence, they will no longer be voluntarily serving their country.

These soldiers are falling victim to the military's "stop-loss" policy — and as a former officer who led some of them in battle, I find their treatment shameful. Announced shortly after the 9/11 attacks and authorized by President Bush, the stop-loss policy allows commanders to hold soldiers past the date they are due to leave the service if their unit is scheduled to be deployed to Iraq or Afghanistan. Military officials rightly point out that stop-loss prevents a mass exodus of combat soldiers just before a combat tour.

But nonetheless, the stop-loss policy is wrong; it runs contrary to the concept of the volunteer military set up in the aftermath of the Vietnam War. Many if not most of the soldiers in this latest Iraq-bound wave are already veterans of several tours in Iraq and Afghanistan. They have honorably completed their active duty obligations. But like draftees, they have been conscripted to meet the additional needs in Iraq.

In her National Review essay, Kate O'Beirne makes another important argument regarding our soldiers in combat: that they are not all like the soldiers at Abu Ghraib. She cites a number of examples of bravery under fire to support her point. (More details and links to the award citations can be found here.)

In early May, Marine Captain Brian Chontosh, Marine Lance Corporal Joseph Perez, and Marine Sergeant Marco Martinez were awarded Navy Crosses for extraordinary heroism, an award second only to the Medal of Honor. Army Sergeant Gerald Wolford, Army Sergeant Major Michael Stack, Marine Staff Sergeant Adam Sikes, and Marine Corporal Armand McCormick — and 123 others — have been awarded Silver Stars for outstanding valor in combat. The stories of these courageous men represent the dedication of the tens of thousands of soldiers serving bravely and honorably in Iraq far better than the actions of a derelict nightshift in two isolated cell blocks.

On March 25, 2003, then-Lieutenant Brian R. Chontosh, 29, of Rochester, N.Y., was leading his platoon on Highway 1 south of Baghdad when his troops came under a coordinated ambush of mortars, rocket-propelled grenades, and automatic-weapons fire. With the road ahead blocked, Chontosh realized his men were caught in a kill zone. He ordered his driver to advance directly into the enemy trench. Chontosh leapt from his vehicle and began firing with his rifle and pistol. But his ammunition ran out. "With complete disregard for his safety," according to the citation, "he twice picked up discarded enemy rifles and continued his ferocious attack.... When his audacious attack ended, he had cleared over 200 meters of the enemy trench, killing more than 20 enemy soldiers and wounding several others."

After being awarded the Navy Cross, Captain Chontosh said, "I was just doing my job, I did the same thing every other Marine would have done, it was just a passion and love for my Marines."

How do these stories relate to each other? First, I think they tell important stories which have been neglected by much of the mainstream press. Today's news from Iraq focuses a lot on the transfer of sovereignty, on the festering insurgency, and on the abuses at Abu Ghraib. But I don't think it does justice to the deeper structural effects this war is having on America's military (it is forcing a soup-to-nuts reevaluation of American military force structure). I also don't think that America's warriors get the coverage they deserve, save attention from their hometown press. When a soldier earns a Silver Star, that's a big deal, and I think the media ought to cover these things with the same zeal as they cover the negative news stories like Abu Ghraib.

Second, I think these stories give the reader some idea of the hardships of military service today. As Mr. Exum's article points out, soldiers today have very little control over when and where they serve, or how. Indeed, one friend of mine who served in Iraq said her only decision in the Army was the decision to sign up for ROTC many years ago. After that, everything is subject to that infamous phrase: "the needs of the Army". Ms. O'Beirne's article paints a picture of the hardships these soldiers (and Marines) have faced on the ground, and the extraordinary acts of courage which have taken place in the face of those hardships. Again, I feel like these are neglected stories. The botttom line is that American soldiers do their best (and often succeed) despite the best efforts of their leadership and their enemies. OSD may have botched the Army's TPFDD in early 2003 and made other errors, but the troops in the field are going to improvise, adapt and overcome in order to get the job done.

Retired Col. David Hackworth has an interesting column up on his website today about the costs of war, and how we might reconsider our actions abroad if we thought about these costs more ahead of time. I always take Col. Hackworth's comments with a grain of salt; despite his legendary combat record, he has an axe to grind. But I think he's right on this one. We should think about the costs of war before we launch one, and we should constantly reevaluate our national security policy as the costs change over time. Mr. Exum's article hints at some of the ways this war has strained the military, and that might give us pause to reevaluate our mission. Ms. O'Beirne's article reminds us that American soldiers will respond as they have always done to extraordinary situations, even if we send them into harm's way in less than ideal circumstances. However, I don't think these soldiers' valor excuses us from our responsibility as citizens. We owe it to these brave men and women to make the right decisions about taking our nation to war.

Intel Dump will go to a summer schedule starting today, in order to let me make my bar review course a priority so that I pass the dreaded California bar exam this summer. (As the saying goes, failure is not an option.) I will strive to post a few quality notes throughout the week as I have time, most likely on weekends. At some point in July, I may cease posting altogether, to conduct my intensive preparation for the exam. In my absence, check out my blog colleagues linked on the left side of this page. Thanks.

Walter Pincus had an interesting story in Sunday's Washington Post regarding new spending by the Coalition Provisional Authority on security-related measures in Iraq. The CPA appears to be spending this money in anticipation of the 30 June handover of sovereignty to the Iraqis. There seems to be an implicit expectation that violence will continue to trend upwards unless the CPA does something to counteract it.

Responding to what it described as the "recent upswing in violence," the occupation authority's Program Review Board, which has the final word on spending Iraqi oil money, approved a $500 million fund last month to meet "the urgent need for increased security as Iraqi sovereignty approaches," according to official notes from the meeting. The money will be used for "security-related reconstruction and military needs" that are still to be decided, the notes say.

The authority has made a range of other recent security moves and expenditures. They include requiring security contractors that protect its convoys to add more armored vehicles to their guard fleets; spending $42.5 million in April to buy more body armor; and, last week, seeking kits to reinforce 200 new Chevrolet, GMC and Ford sport-utility vehicles. The armor plates and transparent antiballistic glass must resist rifle bullets fired from 10 feet and small hand grenades, according to the occupation authority's request for proposals.

The increasing focus on security reflects not just the danger faced by civilian contractors for the authority and Iraqi officials, but also the importance to the U.S.-led authority of curbing violence and fostering greater stability in the weeks before and months after the interim Iraqi government begins work June 30. The authority is also racing the clock to put new protections in place because it will dissolve on that date.

This makes sense, and it's probably a good expenditure of funds. I've said it before, and I'll say it again. Very little nation-building will take place before security is established. Without security, contractors won't work, civilians won't leave their homes, and the streets will become a place where only bandits and soldiers want to go. A great deal of Iraq today is secure. But the major highways and population centers — areas critical to the nation-building effort — remain quite dangerous. Arguably, money spent on nation-building projects in the absence of security is wasted money. Security should come first.

However, that's not the only interesting thing in this story. Indeed, I think Mr. Pincus may have buried the lede of the story. The second half of the Post article describes some major changes to the way private military contractors will do business in Iraq.

The new standards for security escort contracts, carried in the authority's statement of work, added a requirement for armored vehicles and reflected how private company employees are acting as an extension of the military forces.

For example, security contractors must have a copy of the U.S. government's "Rules on the Use of Force," which is part of the contracting plan and provides for "coordination for the use of armed contractors in theatre," according to the work statement. A Pentagon spokesman for the occupation authority said the authority would not discuss details of security procedures.

"Wherever possible, the contractor will avoid the use of deadly force," the work statement says, adding that "the priority remains the security and safe passage of the convoy." The contractor is "responsible for providing immediate aid to civilians that may be injured due to hostile or friendly action," but the contractor is "responsible for determining the threat situation at hand."

All convoy movements are to be carried out through the authority's Office of Security Cooperation, which, under Maj. Gen. Paul D. Eaton, trains all Iraqi military and police units. Contractors must "synchronize" convoy movements by keeping one employee as a liaison person at the office's headquarters 24 hours a day. That person will receive "threat updates, road conditions and closures, [and] inbound convoy information."

The contractor is responsible for providing "armored vehicles, weapons, communications, housing, food, water and latrine services" for his employees and updates via secure phones to the office's command and control personnel, the authority statement says.

Analysis: In the last couple of months, a number of commentators have made the argument that private military contractors (PMCs) require more oversight, more accountability, and more command & control on the ground in Iraq. They also require better equipment and dedicated security forces so they're not sitting ducks driving down the highway. In an April article for Slate, I wrote the following:

Some of these problems [with private military contractors] can be alleviated through legal mechanisms. The easiest fix? Amend these government contracts to solve the discipline and coordination problems. Current (and future) agreements should be modified to require better coordination in the field or to require government contractors to fight from the same rules of engagement as their uniformed brethren. ...

I think these contractual changes for the PMCs are a good thing. They may cost more money in the short term, but short-term expenditures on security should enable more long-term investment in reconstruction. We probably should have thought through this stuff before the war. I don't think anyone really anticipated the extent to which we would use contractors for both reconstruction and military purposes in Iraq. In future wars, we need to take this into account, and plan better for it.

Update I -- But shouldn't the Iraqis buy their own security? Probably... but this story in USA Today indicates that it might be harder for them to do so. Iraq is facing a cash crunch, driven by a lack of foreign-direct investment, lack of foreign trade, and lack of involvement from the economic powerhouses of Europe and Asia in Iraq.

With bank lending almost non-existent and foreign investment in Iraq about as common as a snowstorm, Iraqi businesses are struggling to secure the credit they need for life after Saddam Hussein. Whether these midsize businesses succeed or fail with their job-creating expansions is critical for stability: Iraq's anti-American insurgency is largely made up of unemployed young men. If the economy generated more jobs, extremists couldn't recruit foot soldiers as easily.

* * *
Jobs are another story. In every neighborhood, there are curbside hiring spots where manual workers can be had for 5,000 Iraqi dinars per day — less than $4 at current exchange rates. In the al-Amal district recently, about 40 men milled about on a corner at 10 a.m. Many had been there since dawn.

Despair over the lack of opportunities is breeding anti-U.S. sentiment. "The Americans did nothing. They just removed Saddam and left us suffering twice as much," said a scowling Jassim al-Jabouri, 50, a plasterer.

* * *
And Iraqi banks, not a major source of commercial lending even before the war, aren't likely to provide the money. As many as 90% of borrowers have stopped making payments on existing loans, said Fuad al-Hassanai, managing director of the private Credit Bank of Iraq.

This article makes it clear that security and economic development are very closely related. The CPA and nascent Iraqi government will have difficulty with security so long as so many young men remain out of work, and so long as economic conditions foment dissatisfaction with the way things are today. An influx of money might not solve all of Iraq's problems, but it would certainly help. And I would even go so far as to say that monetary contributions might be more important than troop contributions for Iraq today. We may not be able to get France and Germany (and other NATO members) to send troops. But maybe we can get them to send foreign-direct investment, with the possibility of some return on that investment? It's in our interests to let them buy into Iraq, because economic development will aid our security and reconstruction efforts. So far, we have played hardball with respect to many foreign countries doing business in Iraq, as political payback for the UN debates of 2002-2003. But that policy might have been short-sighted, and we should reconsider it.

Memorial Day means a lot of different things to different Americans — a celebration of our nation, remembrance of veterans, a time to spend with family, et cetera. On Memorial Day, I do those things too. But I am also cognizant of the holiday's official purpose — to remember America's war dead. We consecrate this day, which now falls on the last Monday in May, to remember our fellow Americans who have made the ultimate sacrifice. The VA provides a nice history of the holiday; the History Channel has a good description as well. Here's a short excerpt:

Memorial Day was originally known as Decoration Day because it was a time set aside to honor the nation's Civil War dead by decorating their graves. It was first widely observed on May 30,1868, to commemorate the sacrifices of Civil War soldiers, by proclamation of General John A. Logan of the Grand Army of the Republic, an organization of former sailors and soldiers.

* * *
By the late 1800s, many communities across the country had begun to celebrate Memorial Day and, after World War I, observances also began to honor those who had died in all of America's wars. In 1971, Congress declared Memorial Day a national holiday to be celebrated the last Monday in May. (Veterans Day, a day set aside to honor all veterans, living and dead, is celebrated each year on November 11.)

Today, Memorial Day is celebrated at Arlington National Cemetery with a ceremony in which a small American flag is placed on each grave. Also, it is customary for the president or vice-president to give a speech honoring the contributions of the dead and lay a wreath at the Tomb of the Unknown Soldier. About 5,000 people attend the ceremony annually.

On this Memorial Day weekend, I fortunate to be in the Washington DC area for a wedding. So I decided to visit the new World War II Memorial on Friday, before the official dedication on Saturday by President Bush. Let me say first that it is a breathtaking sight. I know this memorial has provoked criticism from the artistic community, and perhaps it deserves some. But as I walked into the memorial's plaza from 17th St., looking through it towards the Lincoln Memorial, I just found myself awestruck.


* Photo credit: Rick Latoff - American Battle Monuments Commission


The view in this photograph hardly does the site justice — imagine this plaza filled with hundreds (or perhaps thousands) of people. The visitors included infants, children, young adults and old adults. But the most special visitors were clearly these: the men and women who had lived through World War II and the 20th Century to see this memorial constructed to their accomplishments. Some came in suits; some came in sweats. Many wore American Legion caps, or their medals. A few even wore their uniforms, and it was quite a sight to see octogenarians moving around in Marine Corps dress blues or Army greens. These Americans are our living history, and it was very special to spend the day in their presence.


* Photo credit: Don Ripper - American Battle Monuments Commission

I know that Memorial Day is supposed to be about the Americans who have given their lives for this country, and the memorial does remember them with a wall of gold stars — 4,000 stars to represent 400,000 Americans killed in action. However, what meant the most to me this weekend was the ability to watch these older Americans enjoy the memorial. I have often thought of America itself as a memorial to the WWII generation's accomplishments. We owe our way of life and place in the world to their deeds, and to the decisions made during that war by Presidents Roosevelt Truman. In a sense, this great victory needed no memorial, because the WWII generation's endeavors were memorialized in so many things around us. Nonetheless, I couldn't help but think that it was about time we crystallized their accomplishments with something a monument this, and created one place where Americans who didn't live through WWII could come to remember these times.

The WWII Memorial may not be the most aesthetically pleasing monument on the mall; I'll grant the critics that. But it had enormous meaning to those WWII vets I encountered this weekend in Washington. The site also had a profound impact on me, both as a veteran and as the grandson of a WWII veteran. After walking away from the memorial, I couldn't stop talking about it for the rest of the weekend. I also walked away with a great deal of curiosity, about both the monument and the WWII vets who were there. I've read a bit about WWII already, but I felt the need to learn even more, especially about the stories and battles not explicitly mentioned at the memorial. Future generations won't get to see the WWII vets walking around, and they won't get to ask them about their stories. But hopefully, the memorial will spur future generations of Americans to learn about this war — its causes, its costs, its victories and defeats, its legacies and its people. Even if it doesn't win any art prizes, the memorial will be a success to me if it fosters the learning of future generations in this way.

Post Script: Stephen Barr had a very interesting story in Sunday's Washington Post about the GI Bill, which it called "an enduring monument" to the war. I hadn't thought about it until reading this story today, but I think that's really an interesting point.

Since it was signed by President Franklin D. Roosevelt, about $77 billion in benefits authorized under the bill have flowed to 7.8 million veterans of World War II and 2.4 million of the Korean War, according to the Department of Veterans Affairs. An additional 1.4 million post-Korean veterans and 6 million Vietnam-era veterans have used the GI Bill for education and training.

That snapshot, however, does not begin to explain how one law has touched generations of Americans. "It built a modern middle class. It propelled a generation of leaders," said Anthony J. Principi, the secretary of veterans affairs.

Secretary Principi is right on the money, but he also understates the point. The GI Bill is what enabled the veterans of WWII to flood America's colleges and universities -- previously bastions of privilege -- and subsequently become the scientists, engineers, lawyers, teachers, salesmen, managers and leaders of the 20th Century. The GI Bill touched off the greatest educational boom in this country, which according to many studies, is as much responsible for our economic boom during this period as anything. And today, the GI Bill remains the most important benefit for new soldiers choosing to enlist; it has given millions of Americans the chance to earn a post-secondary education that would not have otherwise had it. In a sense, all of us who have served and received GI Bill benefits have walked in the footsteps of the WWII generation, whose initial sacrifices led to the creation of this benefit. And for that, I am personally very grateful.

Admin note: I'm traveling for Memorial Day weekend and will be away from both my laptop and Intel Dump. Please come back on Tuesday, June 1st.

Update: My e-mail account went haywire over the Memorial Day weekend, deleting a number of messages and bouncing others. If you sent me something, please resend it. Thanks.

Remember Total Information Awareness? Some called it a spooky way to impose Big Brother monitoring on American citizens; others called it a necessary tool to sift volumes of data for the proverbial "needle in a haystack". In either case, Congress torpedoed the program in response to criticism from the right and left... or did it?

Robert Pear reports in this morning's New York Times on an extensive survey of federal government "data mining" efforts that mimic many of the features in TIA that caused so much alarm. These programs don't fall under the Congressional act which killed TIA, because that statutory language was written quite narrowly. The GAO survey is scheduled to be released today.

In canvassing federal agencies, the accounting office found that 52 were systematically sifting through computer databases. These agencies reported 199 data mining projects, of which 68 were planned and 131 were in operation. At least 122 of the 199 projects used identifying information like names, e-mail addresses, Social Security numbers and driver's license numbers.

The survey provides the first authoritative estimate of the extent of data mining by the government. It excludes most classified projects, so the actual numbers are likely to be much higher.

The Defense Department made greatest use of the technique, with 47 data mining projects to track everything from the academic performance of Navy midshipmen to the whereabouts of ship parts and suspected terrorists.

Senator Daniel K. Akaka, Democrat of Hawaii, who requested the report by the accounting office, said: "I am disturbed by the high number of data mining activities in the federal government involving personal information. The government collects and uses Americans' personal information and shares it with other agencies to an astonishing degree, raising serious privacy concerns."

Analysis: TIA included more than just data mining, although that's a euphemism which could include everything from mere information gathering to actual "non-obvious relationship analysis" (NORA for short). So it's not entirely true that this is a rebirth of TIA, or that all of the same civil liberties concerns apply. However, some of them do, and we should be cautious as we proceed with the development of these new technologies. In an age of Googling and Lexis public records searches, information privacy is already a precious commodity. We may not want to cheapen it more.

One of my readers forwarded me a link to the March edition of The Utah Sheriff, a quarterly newsletter for the Utah Sheriffs' Association. On page 6 of the newsletter, this photograph appears depicting Deputy Defense Secretary Paul Wolfowitz touring the Abu Ghraib prison with Lane McCotter, Gary DeLand and BG Janis Karpinski. (The fifth guy in the back looks to me like NYT reporter Eric Schmitt, but it could also be a security guy; I've only met Mr. Schmitt once at a Toyota dealership in Alexandria two years ago.) The caption from the photo reads ""Lane McCotter briefing Deputy Secretary of Defense Paul Wolfowitz, on a tour of the death house at Abu Ghraib Prison, south of Baghdad."


The exact date on the picture is unknown, however the New York Times
reports that Mr. McCotter left Iraq on October 1, 2003, to return to the states. The newsletter implies that it was taken during the summer of 2003.

I'm not sure what to make of this photo, or what it says about the Deputy Defense Secretary's involvement at Abu Ghraib. It's certainly possible this is simply what it shows -- a senior Pentagon official touring a detention facility. Additionally, Abu Ghraib was where the Hussein regime committed many of its worst human rights abuses, so it does make sense as a stop for the DepSecDef. But it sure raises some questions, doesn't it? Here are a few I'd like to see answered:

- What exactly was Deputy Defense Secretary Wolfowitz doing at Abu Ghraib in summer 2003? Was he involved with the prison at all, or was this just tourism like the photo caption says?

- Does this picture help corroborate the latest Sy Hersh story, namely, that the chain of command for the special-access program "Copper Green" ran straight from Abu Ghraib's personnel to the Pentagon?

- What was BG Karpinski's role in all of this, and why hasn't she been prosecuted yet? This photo may undercut her assertion that she was cut out of the loop.

More to follow.

Update I: Apparently, that is NYT reporter Eric Schmitt in the photo. I did some digging in the archives, and found a story from Mr. Schmitt that he filed from Iraq during this timeframe. Deputy Defense Secretary Wolfowitz took a trip to Iraq in July 2003, and it looks like Mr. Schmitt accompanied him during that visit. This excerpt appeared in an International Herald Tribune story (seconded from the NY Times) dated July 23, 2003:

Yet much of Wolfowitz's trip has the feel of being stage-managed to support his long-stated views. Reporters joined him on a tour of a graveyard in Hilla, where 3,000 bodies were unearthed from shallow pits. He led another tour through the notorious Abu Ghraib prison outside Baghdad, where thousands of Iraqis were tortured and executed. Throughout the trip he referred to Saddam as a tyrant," killer" and sadist."

So... one question to ask is whether Mr. Wolfowitz did more at Abu Ghraib in July 2003 than just lead a tour of the prison? Did he meet with intelligence officials or MPs there? Did he get a status report on the production of intel at that facility? Did that report influence him to initiate the Copper Green program? Or was that special-access program already underway, and the purpose of Mr. Wolfowitz' visit to check on it? A lot of the answers to these questions are being kept quiet for now. But I have a feeling that the defense attorneys for the 6 MPs about to face courts martial for Abu Ghraib will do everything they can to find the answers, and that we (the public) will likely learn about these facts through their discoveries.

Update II: I missed it before, but the same NY Times report above indicates that Mr. McCotter has been investigated for past transgressions relating to prison abuse, to include sexual and physical abuse.

... the man who directed the reopening of the Abu Ghraib prison in Iraq last year and trained the guards there resigned under pressure as director of the Utah Department of Corrections in 1997 after an inmate died while shackled to a restraining chair for 16 hours. The inmate, who suffered from schizophrenia, was kept naked the whole time.

The Utah official, Lane McCotter, later became an executive of a private prison company, one of whose jails was under investigation by the Justice Department when he was sent to Iraq as part of a team of prison officials, judges, prosecutors and police chiefs picked by Attorney General John Ashcroft to rebuild the country's criminal justice system.

It's not clear what, exactly, Mr. McCotter was hired to do at Abu Ghraib. But I agree with my reader (who e-mailed me this story) that he was playing some important role, by virtue of the fact that he was briefing a deputy cabinet officer. In the military hierarchy, lieutenants rarely brief generals and junior staffers rarely brief cabinet officers. It looks like Mr. McCotter was helping the 800th MP Brigade run prison operations at Abu Ghraib, from this picture and the NYT report, and he was apparently being well-compensated for it too. I'm not sure why a Military Police internment/resettlement unit needs coaching on how to do its job, or why we would pay someone to do this when we have federal correctional officials who can act as advisers too. More questions that should be asked and answered...

Questions linger about how the government will deal with contractors who may have exceeded their contractual authority — and the bounds of the law

Wednesday's papers contain a few new developments relating to the civilian contractors working at Abu Ghraib. Two corporations appear to have provided linguistic and interrogation support for detention and intelligence operations there — CACI Corp. and Titan Corp. There is a great deal of speculation right now as to what will happen to these corporations, as well as their employees, for their apparent misconduct.

The New York Times has a pair of articles on the subject, starting with a report about one of the civilian contractors and his denial of the allegations surrounding Abu Ghraib. John B. Israel, an Iraqi-American from Southern California, denies that he was involved with these abuses, and has not even hired an attorney to rebut them or defend himself.

Mr. Israel, who was born in Baghdad in 1955, was one of three Iraqi-Americans working as translators at Abu Ghraib. The Army report on the abuses described him as "either directly or indirectly responsible for the abuses at Abu Ghraib."

On Monday, his employer, SOS Interpreting, with offices in New York and suburban Washington, called Mr. Israel here for talks. That same evening, SOS issued its first statement about Mr. Israel, saying simply that the company, a subcontractor for the Titan Corporation for the work in Iraq, "fully intends to cooperate with the Army and with Titan" in the investigations. SOS said it would have nothing more to say.

Almost nothing was known about Mr. Israel before now. Among a raft of documents from the Army investigation, obtained by The New York Times, is a brief statement by Mr. Israel in which he denies any knowledge of the abuses. In it he says he arrived in Iraq on Oct. 14 and served as a translator for military intelligence. Asked if he had "witnessed any acts of abuse," he wrote: "No I have not."

Ms. Israel said her husband was "just a translator" and knew nothing of the Abu Ghraib abuses. She said a fellow employee had given his name to investigators. She would not say when he expected to return home, and he could not be reached for comment.

Another interesting report from Adam Liptak of the New York Times discusses some of the possible sanctions these contractors could face at home and abroad. The contractors implicated in the Abu Ghraib mess could face U.S. criminal charges. (The WP reported Saturday that the Justice Department started a criminal inquiry into one civilian employee at Abu Ghraib.) However, Iraqi courts will probably never get to touch this issue, and it's unclear whether these contractors will face any civil sanctions for their actions.

Prosecuting civilian contractors in United States courts would be "fascinating and enormously complicated," said Deborah N. Pearlstein, director of the U.S. law and security program of Human Rights First.

It is clear, on the other hand, that neither Iraqi courts nor American courts-martial are available.

In June 2003, L. Paul Bremer III, the chief American administrator in Iraq, granted broad immunity to civilian contractors and their employees. They were, he wrote, generally not subject to criminal and civil actions in the Iraqi legal system, including arrest and detention.

That immunity is limited to their official acts under their contracts, and it is unclear whether any abuses alleged can be said to have been such acts. But even unofficial conduct by contractors in Iraq cannot be prosecuted there, Mr. Bremer's order said, without his written permission.

Similarly, under a series of Supreme Court decisions, civilians cannot be court-martialed in the absence of a formal declaration of war. There was no such declaration in the Iraq war.

In theory, the president could establish new military commissions to try civilians charged with offenses in Iraq, said Jordan Paust, a law professor at the University of Houston and a former member of the faculty at the Army's Judge Advocate General's School. The commissions announced by President Bush in the wake of the Sept. 11 attacks do not, however, have jurisdiction over American citizens.

That leaves prosecution in United States courts. There, prosecutors might turn to two relatively narrow laws, or a broader one, to pursue their cases.

For more on this subject, see my Slate article "Hired Guns" and my Explainer on disciplining private contractors, as well as this excellent Writ column by Anthony Sebok on the applicability of the Alien Tort Claims Act and Federal Tort Claims Act to this case. Query: Can the Iraqi prisoners abused at Abu Ghraib file a Bivens action in federal court against the U.S. government, just as a U.S. citizen might do if he/she were abused by the FBI? It's not a question I can readily answer, because I don't have a substantive background 42 U.S.C. 1983 or civil rights law, but it's one that may become relevant soon if the Iraqis seem some relief in U.S. courts.

Finally, the Wall Street Journal (subscription required) has a report on contract irregularities in the agreement that allowed CACI Corp. to send personnel to Iraq to assist in the interrogations at Abu Ghraib. (For non-WSJ subscribers, check out this AP version of the story.) Apparently, the contracts were actually held by the Department of the Interior — not the Army, as previously reported. And, there were other irregularities too, which may have been devised to evade proper oversight.

WASHINGTON — Government auditors are investigating the Army's unusual use of a computer-services contract to hire interrogators for Iraqi prisons from a company with no prior experience in that work.

* * *
To fund the interrogators, the Army paid CACI under a 1998 contract, which is being administered by the Interior Department. Under the contract, CACI supplied computers and associated equipment at military bases world-wide.

But investigators are now asking why the Army chose such an unusual, if not irregular, method of funding, given that the Defense Department already had several outstanding, multimillion-dollar contracts with CACI, which it administered in-house. By being tucked away in a massive agreement administered outside the Pentagon, the program budget for interrogators escaped the notice of Defense Department auditors for several months.

"This evaded all normal forms of oversight," said one Pentagon official familiar with the contract.

* * *
The Interior Department's Mr. Quimby said that at the time, a contract officer noted the unusual salary requests and began combing through government regulations, seeking a job-description category that "was broad enough to include interrogators." The federal government has detailed guidelines that lay out the qualifications and pay grades for hundreds of different contracted positions. But "interrogator" was evidently a job category that neither CACI nor Army contractors had encountered.

Mr. Quimby said the contract officer finally decided that such an interrogator could be allowed under the contract, because he probably worked with computer databases and analyzed information. But both Interior and the Pentagon have had a change of heart. Auditors at both agencies are looking into how CACI determined what pay is appropriate for a private interrogator. For pay purposes, according to one military official familiar with the contract, CACI listed its hired interrogators as different types of computer specialists, a step that may be forbidden under federal regulations.

This is not good for CACI. As this article explains, there are a litany of remedies available to the federal government when it finds improper conduct by government contractors. If the report in the WSJ is accurate, and I presume it is, the company could also face liability under the False Claims Act and other federal procurement regulations. Suffice to say, these practices don't look kosher to me, and government contracting regs and laws are pretty strict when it comes to accounting practices. Ironically, the government may not ultimately prosecute these corporate entities for any of the actual wrongdoing at Abu Ghraib, because the culpability chain is somewhat weak there in my opinion. But I think there's a strong likelihood that the government will prosecute these contractors if there were financial irregularities, because the government typically takes a very hard line on this stuff. More to follow...

Update: Ellen McCarthy adds some details about the Interior Department contracts today in a Washington Post report.

The contract, which is officially called a blanket-purchase agreement and has a $500 million limit, was then reissued by Interior. Blanket-purchase agreements are large, vaguely worded contracts designed to give agencies flexibility and to speed up purchases. Critics say these open-ended contracts allow agencies to skirt public oversight.

A year ago CACI acquired Premier Technology Group. In August, Command Joint Task Force-7, the unit overseeing operations in Iraq, decided it wanted CACI to provide interrogators under the blanket-purchase agreement, and informed Interior of its plan.

Because the blanket-purchase agreement was by that time an Interior contract, an Interior official was required to evaluate the new orders to make sure the work was not "outside the scope" of the contract, said Quimby, and that CACI was charging the government appropriately.

The contract was for technology services, but Interior's contracting officer "was convinced under his own guidelines" that the Army could request CACI's help with interrogations because the order included computer integration and data processing work, Quimby said. Interior thus issued a $19.9 million order for the work.

In December 2003, the contract was used again to hire CACI for counterintelligence support in a deal worth $21.8 million.

To call this irregular would be an understatement. In the government contracts world, there are unconventional ways to do things, such as the authority to purchase services without bidding or the authority to purchase off-the-shelf items. But against those kinds of unconventional contracts, this CACI contract looks quite unorthodox. The problem here is that the government contracts process is supposed to have some measure of transparency built into it. The reason for this is accountability. After all, government contracts are really about taxpayer money — our money — and Congress needs to be able to follow the money to ensure that it's spent properly. I have a feeling that this incident will lead to some action by Congress, and not just by the Armed Services Committees. I think we're going to see some oversight action by the Government Affairs Committees and others in Congress who are interested in these issues, separate from anything directly connected to Abu Ghraib.

The New York Times reports this morning on an Army report that details what happened in 37 prisoner deaths in Iraq and Afghanistan since April 15, 2003. The cases include those ruled "justifiable homicide" deaths, as well as cases where abuse or criminal homicide is suspected. In total, the report appears to support the contention that there were serious problems with prisoner treatment by the Army abroad, and that in many cases, intelligence officers may have gone too far in squeezing prisoners to get intel.

The cases from Iraq date back to April 15, 2003, a few days after Saddam Hussein's statue was toppled in a Baghdad square, and they extend up to last month, when a prisoner detained by Navy commandos died in a suspected case of homicide blamed on "blunt force trauma to the torso and positional asphyxia."

Among previously unknown incidents are the abuse of detainees by Army interrogators from a National Guard unit attached to the Third Infantry Division, who are described in a document obtained by The New York Times as having "forced into asphyxiation numerous detainees in an attempt to obtain information" during a 10-week period last spring.

The document, dated May 5, is a synopsis prepared by the Criminal Investigation Command at the request of Army officials grappling with intense scrutiny prompted by the circulation the preceding week of photographs of prisoner abuse at Abu Ghraib. It lists the status of investigations into three dozen cases, including the continuing investigation into the notorious abuses at Abu Ghraib.

In one of the oldest cases, involving the death of a prisoner in Afghanistan in December 2002, enlisted personnel from an active-duty military intelligence unit at Fort Bragg, N.C., and an Army Reserve military-police unit from Ohio are believed to have been "involved at various times in assaulting and mistreating the detainee."

The Army summary is consistent with recent public statements by senior military officials, who have said the Army is actively investigating nine suspected homicides of prisoners held by Americans in Iraq and Afghanistan in late 2002.

But the details paint a broad picture of misconduct, and show that in many cases among the 37 prisoners who have died in American custody in Iraq and Afghanistan, the Army did not conduct autopsies and says it cannot determine the causes of the deaths.

* * *
Army officials have been reluctant to discuss the type of detail that the document describes, even when investigations into the cases are closed. The Army has refused to make public the synopses of Army criminal investigations into the deaths or assaults of Iraqi or Afghan prisoners while in custody.

Analysis: Of course, the Army is going to be tight-lipped about this. In addition to all the normal concerns about investigative secrecy, the Army also wants to preserve some sources and methods that it uses in its human intelligence collection effort. However, I'm not sure the Army can maintain this effort at secrecy anymore given the severity and scope of the abuses. We're not just talking about stress positions or even a little "smacky face", as Jess Bravin's excellent April 2002 WSJ article called it. This conduct includes murder (albeit probably not 1st degree), and it's clearly prohibited under international and domestic law. The time has come for the Army to clean house.

There is some irony here. Immediately after 9/11, and really all the way up to the start of the war in Iraq, many commentators (including myself) lamented the lack of solid human intelligence ("HUMINT") capabilities. We criticized the CIA for not redeveloping these capabilities during the 1990s, so it could penetrate terrorist cells. We criticized the FBI for not having informants and other sources in these networks. And we criticized the intelligence community for relying too heavily on technical means. After 9/11, it has been reported that the intel community started working under a new set of rules. As one report put it: "the f**king gloves came off." HUMINT took a new priority in intelligence collection. However, the intel community still didn't have the deep sources within the enemy networks that it needed. So to produce HUMINT, it took another tack — the extraction of intel from prisoners.

So far, the record for this approach is mixed. It appears that some coercive interrogation measures have worked, if you take the government at its word that it has been able to track and dismantle Al Qaeda cells in the U.S. with this information. There's also a great deal of evidence that torture and coercion don't work, such as this column by a former U.S. POW in Vietnam. (Thanks to STB for forwarding this.) But this may ultimately prove to be a case where our tactics won the battle, but lost the larger war for the moral high ground and for moral supremacy. The jury's still out on that one.

Two interesting developments in this morning's papers regarding the continuing investigation (and prosecution effort) at Abu Ghraib.

1. 800th MP Bde commander relieved. The Washington Post reports that the Army has relieved BG Janis Karpinski of her command pending the outcome of the investigation into Abu Ghraib.

Karpinski was indefinitely relieved of her command pending the outcome of investigations into treatment of prisoners at Abu Ghraib, but Army officials said the move should not be taken as punishment.

Karpinski was in charge of all 16 U.S. detention facilities in Iraq when the abuses occurred last fall. She has stated repeatedly that she did not know about the problems because a military intelligence brigade ran the section of the prison where detainees were humiliated and physically maltreated. An Army investigation of the performance of military intelligence officers at the prison is still underway.

Lt. Col. Pamela Hart, an Army spokeswoman, confirmed that Karpinski had been suspended and will be transferred to another Army reserve unit. Another officer will be named to take her command position temporarily.

Before yesterday, Karpinski's duties had not been affected by the prison scandal. She had returned home to South Carolina on leave after more than a year in Iraq.

Reached yesterday by telephone in New Jersey, Karpinski said she had not received official written notice of her suspension but had confirmed it with Army officials. She said she is angry because she believes she has done nothing wrong.

This seems to me like something that was long overdue, especially given the fact that she's gotten an administrative reprimand already for this stuff. I think this may be a prelude to formal charges being preferred against BG Karpinski and her subordinates (like LTC Jerry Phillabaum), especially given the news over the weekend that CPT Donald Reese (the 372d MP Company commander) had pled out in exchange for his testimony. I imagine that Army prosecutors are quite willing to trade one captain's conviction for that of a colonel and general. Of course, the decision to prosecute BG Karpinski will ultimately be a political one. Once prosecutors start up the chain of command responsibility, it's not clear how high they will go. I think this decision will be made at the highest levels, but in the end, I also think we'll see some higher-ranking prosecutions in the near future.

2. MP's lawyer seeks suppression of statement. USA Today reports that lawyers for PFC Lynndie England are seeking to suppress statements she made to military investigators. Apparently, she had invoked her right to counsel and had not waived her Art. 31 right against self-incrimination, yet the investigators continued to press her.

Rose Mary Zapor, the Denver lawyer heading England's defense, said England was questioned by military investigators three times — twice in January and again in May. "The three statements were taken illegally, because she had invoked her right to counsel," Zapor said in a telephone interview Monday.

If true, this will likely lead to the suppression of PFC England's statements. The military right against self-incrimination is actually quite strong, and the military right to counsel is equally strong -- both are probably more substantial rights than those accorded to civilian criminal defendants. Indeed, the military privilege against self-incrimination pre-dates the Supreme Court's Miranda decision, and was actually cited by the Court in that case as a template for the prophylactic police measures required by the Court. Nonetheless, I don't see this statement as all that critical to the prosecution's case here. After all, they have pictures, and testimony from other MPs like SPC Jeremy Sivits. These statements might have made a slam-dunk case even easier, but without them, it's still a slam-dunk case.

The White House has posted a transcript of the President's speech. You can read analyses of the speech in the major newspapers, such as the Wall Street Journal, New York Times and Washington Post. But I'd like to comment on a few things that I noticed during the speech as significant.

1. "We've also seen images of a young American facing decapitation. This vile display shows a contempt for all the rules of warfare, and all the bounds of civilized behavior. It reveals a fanaticism that was not caused by any action of ours, and would not be appeased by any concession. We suspect that the man with the knife was an al Qaeda associate named Zarqawi. He and other terrorists know that Iraq is now the central front in the war on terror. And we must understand that, as well. The return of tyranny to Iraq would be an unprecedented terrorist victory, and a cause for killers to rejoice. It would also embolden the terrorists, leading to more bombings, more beheadings, and more murders of the innocent around the world.

The rise of a free and self-governing Iraq will deny terrorists a base of operation, discredit their narrow ideology, and give momentum to reformers across the region. This will be a decisive blow to terrorism at the heart of its power, and a victory for the security of America and the civilized world."

Analysis: This passage, early in the speech, raises several issues. The first is that President Bush is still trying to tie Iraq to Al Qaeda in order to bolster the American raison d'etre for being in Iraq. I think it's clear that Al Qaeda is operating within Iraq in some way. But this passage is somewhat deceptive, because it puts the cart before the horse. As I understand it, Al Qaeda moved into Iraq after our invasion and occupation to aid the insurgency there. In a sense, we opened a new front in the war on terrorism through this war, but I'm not sure that's a good thing. I don't buy the flypaper theory that we're attracting insurgents in Iraq that might otherwise come fight us in the U.S. And I'm not sure that we can link our counter-insurgency effort so clearly to the global counter-terrorism effort against Al Qaeda. To many in the international community, I think this refrain will be seen unfavorably, as one more attempt to justify the U.S. action without sufficient evidence.

2. "Helping construct a stable democracy after decades of dictatorship is a massive undertaking. Yet we have a great advantage. Whenever people are given a choice in the matter, they prefer lives of freedom to lives of fear. Our enemies in Iraq are good at filling hospitals, but they do not build any. They can incite men to murder and suicide, but they cannot inspire men to live, and hope, and add to the progress of their country. The terrorists' only influence is violence, and their only agenda is death."

Analysis: I noticed this passage because it seemed to tell the terrorists how they might do business better. As many readers know, there are terrorist organizations that have humanitarian and civil-action wings, such as Hamas, which provide schools, medical care and other services in order to win the hearts and minds of the populations they're fighting for. Indeed, this has been an important part of the Al Qaeda model since the 1990s. These charitable organizations help to raise money, increase support among moderate Muslims, as well as act as a means for the movement of money, men and materiel. I think we should think about how we would respond if the Iraqi insurgents got smart and started to use this model to oppose us. What would we do if al-Sadr's gang started running social services?

3. "Our coalition has a clear goal, understood by all — to see the Iraqi people in charge of Iraq for the first time in generations. America's task in Iraq is not only to defeat an enemy, it is to give strength to a friend - a free, representative government that serves its people and fights on their behalf. And the sooner this goal is achieved, the sooner our job will be done."

Analysis: I can't resist this one. Finally... we have a goal for our mission in Iraq. Finally, we can define part of our end state for this country. Presumably, this means that U.S. forces (and occupation authorities, and contractors, and others) can leave Iraq when the first election is held and the first new government is sworn in. That's an ambitious goal, but it's certainly one that can be defined and probably reached too. It's almost too obvious to say, but this is a goal we should've articulated much, much earlier. We should've dropped the WMD issue and focused on this and the human rights issue as quickly as possible. The right to self-determination is something deeply rooted in international law, and it is something that other nations can get behind. But by articulating it as our goal now, when the going has gotten bad, I'm worried that other nations will be reticent to sign on. We'll see.

4. "America will provide forces and support necessary for achieving these goals. Our commanders had estimated that a troop level below 115,000 would be sufficient at this point in the conflict. Given the recent increase in violence, we'll maintain our troop level at the current 138,000 as long as necessary. This has required extended duty for the 1st Armored Division and the 2nd Light Cavalry Regiment — 20,000 men and women who were scheduled to leave Iraq in April. Our nation appreciates their hard work and sacrifice, and they can know that they will be heading home soon. General Abizaid and other commanders in Iraq are constantly assessing the level of troops they need to fulfill the mission. If they need more troops, I will send them. The mission of our forces in Iraq is demanding and dangerous. Our troops are showing exceptional skill and courage. I thank them for their sacrifices and their duty. (Applause.)"

Analysis: The Wall Street Journal (subscription required) reported this morning that the 138,000-man force level would likely be maintained through this winter. That means that the President will need to call up substantial numbers of reservists and re-deploy substantial numbers of soldiers to Iraq for a second tour, because the Army's original plan for the next rotation in Iraq assumed a gradual drawdown. (It also assumed the viability of Iraqi forces by this time, and the presence of international support, but that's another story.) This continuing deployment is already stretching America's military badly; it will continue to do so if the level of troops is maintained. I agree that we must commit enough troops to Iraq to do the job, and that it would be irresponsible to deploy too few "boots on the ground" for the mission. But at some point, we also must consider other operational needs around the world, such as the need to maintain ready forces for a Korean contingency or humanitarian deployment elsewhere (e.g. Haiti) that affects our security. The U.S. has a finite military capacity, and we may have committed too much of that to Iraq for the near term.

5. "A new Iraq will also need a humane, well-supervised prison system. Under the dictator, prisons like Abu Ghraib were symbols of death and torture. That same prison became a symbol of disgraceful conduct by a few American troops who dishonored our country and disregarded our values. America will fund the construction of a modern, maximum security prison. When that prison is completed, detainees at Abu Ghraib will be relocated. Then, with the approval of the Iraqi government, we will demolish the Abu Ghraib prison, as a fitting symbol of Iraq's new beginning.(Applause.)"

Analysis: Well, it's about time. As I said last night, we should've demolished this house of horrors at the same time we demolished all of those statues of Saddam. I understand the logistical constraints on the Army, and the decision calculus to use existing facilities where they exist. But to the average Iraqi, it must look bad to see the U.S. forces using Saddam's palaces as headquarters and Saddam's prisons as prisons. We don't just want to be slightly different than Saddam — we want to be a lot different. At some point, we should've given these palaces to the Iraqis to become schools or hospitals. And we either should've demolished Abu Ghraib or built a museum in it. Symbolism counts in counter-insurgency, and we miscalculated the symbolic effect of using so much of Saddam's infrastructure for our own occupation.

To date, there have been no servicemembers awarded the Medal of Honor for acts of valor in Operation Enduring Freedom (Afghanistan) or Operation Iraqi Freedom. That is not to say there have been no acts of heroism which warrant this award — only that this award is given sparingly, to the most conspicuous acts of gallantry that go above and beyond the call of duty. I know of at least one Army soldier being recommended for the Medal from the 3rd Infantry Division, and several Marines who have been awarded the Navy Cross.

Today, the Wall Street Journal (subscription required) tells the story of Marine Cpl. Jason L. Dunham, who died on April 22, 2004, and is being posthumously recommended for the Medal of Honor. Cpl. Dunham served as a squad leader in 3-7 Marines, a unit which fought in the war and has since redeployed to Iraq for a second tour. In a fierce firefight, Cpl. Dunham sacrificed himself for the lives of his buddies, based on a hunch that he could smother a grenade with his Kevlar helmet.

Insurgents, the reports said, had ambushed a convoy that included the battalion commander, 40-year-old Lt. Col. Matthew Lopez, of Chicago. One rifle shot penetrated the rear of the commander's Humvee, hitting him in the back, Lt. Col. Lopez says. His translator and bodyguard, Lance Cpl. Akram Falah, 23, of Anaheim, Calif., had taken a bullet to the bicep, severing an artery, according to medical reports filed later.

Cpl. Dunham's patrol jumped aboard some Humvees and raced toward the convoy. Near the double-arched gateway of the town of Husaybah, they heard the distinctive whizzing sound of a rocket-propelled grenade overhead. They left their vehicles and split into two teams to hunt for the shooters, according to interviews with two men who were there and written reports from two others.

Around 12:15 p.m., Cpl. Dunham's team came to an intersection and saw a line of seven Iraqi vehicles along a dirt alleyway, according to Staff Sgt. Ferguson and others there. At Staff Sgt. Ferguson's instruction, they started checking the vehicles for weapons.

Cpl. Dunham approached a run-down white Toyota Land Cruiser. The driver, an Iraqi in a black track suit and loafers, immediately lunged out and grabbed the corporal by the throat, according to men at the scene. Cpl. Dunham kneed the man in the chest, and the two tumbled to the ground.

Two other Marines rushed to the scene. Private First Class Kelly Miller, 21, of Eureka, Calif., ran from the passenger side of the vehicle and put a choke hold around the man's neck. But the Iraqi continued to struggle, according to a military report Pfc. Miller gave later. Lance Cpl. William B. Hampton, 22, of Woodinville, Wash., also ran to help.

A few yards away, Lance Cpl. Jason Sanders, 21, a radio operator from McAlester, Okla., says he heard Cpl. Dunham yell a warning: "No, no, no — watch his hand!"

What was in the Iraqi's hand appears to have been a British-made "Mills Bomb" hand grenade. The Marines later found an unexploded Mills Bomb in the Toyota, along with AK-47 assault rifles and rocket-propelled-grenade launchers.

A Mills Bomb user pulls a ring pin out and squeezes the external lever — called the spoon — until he's ready to throw it. Then he releases the spoon, leaving the bomb armed. Typically, three to five seconds elapse between the time the spoon detaches and the grenade explodes. The Marines later found what they believe to have been the grenade's pin on the floor of the Toyota, suggesting that the Iraqi had the grenade in his hand — on a hair trigger — even as he wrestled with Cpl. Dunham.

None of the other Marines saw exactly what Cpl. Dunham did, or even saw the grenade. But they believe Cpl. Dunham spotted the grenade — prompting his warning cry — and, when it rolled loose, placed his helmet and body on top of it to protect his squadmates.

The scraps of Kevlar found later, scattered across the street, supported their conclusion. The grenade, they think, must have been inside the helmet when it exploded. His fellow Marines believe that Cpl. Dunham made an instantaneous decision to try out his theory that a helmet might blunt the grenade blast.

"I deeply believe that given the facts and evidence presented he clearly understood the situation and attempted to block the blast of the grenade from his squad members," Lt. Col. Lopez wrote in a May 13 letter recommending Cpl. Dunham for the Medal of Honor, the nation's highest award for military valor. "His personal action was far beyond the call of duty and saved the lives of his fellow Marines."

Thoughts: The story behind Cpl. Dunham's actions, as well as the stories of those Marines awarded the Navy Cross and Silver Star this month, should give everyone some pause to think. The word "hero" has been used a lot lately, to refer to everyone from pro athletes to firefighters to reservists to combat soldiers. Increasingly, I believe, we have had a tendency to conflate the terms "survivor" and "hero", calling those who simply did their duty "heroes" even though they did nothing extraordinary to distinguish themselves from their peers save the act of volunteering to be there in the first place. I don't think it's necessarily heroic to do your duty, i.e. "the company that just came home were all heroes." That title, to me, requires something more. The acts of these Marines clearly qualify as heroic. They faced a situation and did more than just survive; they conquered their fear, seized the initiative, and demonstrated great physical courage in the face of mortal danger. In most cases, they did so in order to save (or secure) their buddies, a primal impulse in combat.

In a lot of ways, recognizing them with a medal seems insignificant. After all, it's just a piece of metal suspended by a machine-made ribbon with no jewels or special pecuniary value. But these medals represent a great deal within the warrior culture. They are a mark of respect and accomplishment, which only the initiated truly appreciate. Military commanders have understood this for some time. Napoleon has been paraphased as saying that a soldier will do anything for a little piece of ribbon. It's not the ribbon per se that animates the soldier — it's the service to one's peers, and their respect afterwards for the act of bravery.

My grandfather, who flew in the backseat of Navy dive bombers during WWII, used to say that the difference between a Silver Star and the MOH was the literacy of the officer writing the recommendation. (As an enlisted man, I think he said that to encourage me to write well as an officer where my soldiers were concerned.) The larger point is this: it's often hard to distinguish great acts of valor in combat, and decide what merits a Silver Star and what merits a Medal of Honor. Here's how the Army defines the criteria for the Medal:

Criteria: The Medal of Honor is awarded by the President, in the name of Congress, to a person who, while a member of the Army, distinguishes himself or herself conspicuously by gallantry and intrepidity at the risk of his or her life above and beyond the call of duty while engaged in action against an enemy of the United States; while engaged in military operations involving conflict with an opposing foreign force; or while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party. The deed performed must have been one of personal bravery or self-sacrifice so conspicuous as to clearly distinguish the individual above his or her comrades and must have involved risk of life. Incontestable proof of the performance of the service will be exacted and each recommendation for the award of this decoration will be considered on the standard of extraordinary merit.

Looking at this definition, I think that Cpl. Dunham's actions certainly qualify for the awarding of the Medal. This front-page Wall Street Journal article will likely be read by a number of Marine Corps veterans and members of Congress, and that will help his cause too. In the end, it's impossible to say whether he will be recognized this way, or with another award like the Navy Cross. But regardless of the medal ultimately given, we will always be able to call Cpl. Dunham a hero.

President defines victory and exit strategy for Iraq

Tonight, President Bush spoke to an audience at the Army War College about his plan for Iraq. In reality, he was speaking to the nation and the world. But I thought the choice of location was somewhat ironic. After all, it was the Army War College which produced the study that informed Gen. Eric Shinseki's comment that it would take a Herculean police effort to manage the post-war aftermath. And it was an Army War College report that said this war had stretched the Army to its "breaking point". So this may have been a uniformed crowd, but it was not necessarily an easy crowd — and certainly not an uninformed crowd. The military establishment may be a conservative institution, but it is also a realistic one. Many of the senior officers I know are skeptical of America's current national security policy, and of the means we have chosen to achieve our ends. Without question, the officers at the Army War College serve the President; they will obey his orders. But they do not do so blindly, or ignorantly — the President must sell his case to them too.

The New York Times had a good pre-report on the speech, which was based on a White House outline released before the speech. The most notable talking point was the planned demolition of the Abu Ghraib prison. I've wondered for some time why this wasn't torn down in April 2003, as one more artifice of the Hussein regime. I know we needed a detention facility, but it seems like the use of this place connected us geographically and sentimentally to the abuses of the Hussein regime, even before the abuses there became public. So it's about time we made this decision. If we're smart, we'll make a show of it, and have an Iraqi leader (or former detainee — or both) depress the plunger on the explosives to take down the building.

I'll try to post some analysis tonight or tomorrow morning when the speech transcripts are posted. More to follow.

Could this investigation hamper the company's proposed acquisition by Lockheed Martin?

The Wall Street Journal (subscription required) reports that the Titan Corporation has terminated one of its employees accused of misconduct at Abu Ghraib.

Titan spokesman Ralph "Wil" Williams confirmed that Adel Nakhla, an Egyptian-born American citizen, had been "terminated," but he declined to say why or when the action was taken. A classified portion of Army Maj. Gen. Antonio Taguba's February report on the mistreatment of Iraqi prisoners says the Titan translator "admitted" he helped hold down three detainees who were "nude, handcuffed to each other and placed in sexual positions," according to a U.S. official who reviewed the report.

The document includes an Army Criminal Investigation Division report that alleges the Titan employee committed "indecent acts" and "cruelty and maltreatment," the official said. The report accuses Mr. Nakhla of "dereliction of duty," "conspiracy" and failure to obey an order or regulation.

The circumstances of Mr. Nakhla's dismissal from Titan remain unclear. The news came on the same day the Justice Department said it has opened a criminal investigation of "a civilian contractor" in Iraq related to the abuse of prisoners at Abu Ghraib. Neither the Justice Department nor the Pentagon would identify the contractor.

Justice Department spokesman Mark Corallo said the investigation was prompted by a referral from the Pentagon. The inquiry marks the first move toward prosecuting civilian employees of contractors who worked as translators and interrogators at Abu Ghraib. One U.S. soldier pleaded guilty last week to prisoner-abuse charges, and six more face court martial.

Analysis: The WSJ story goes on to quote Titan officials as saying that this issue should not affect their company's impending acquisition by industry giant Lockheed Martin. It shouldn't... but it could. There a litany of ways (as discussed in this Slate article) the Defense Department can sanction a contractor like Titan Corp., including permanent debarment from bidding for DoD contracts. That might make this entity a lot less attractive to a buyer like Lockheed Martin, who presumably wants a subsidiary capable of making money.

So far, the Army (which actually owned the Abu Ghraib contracts and would be the debarring agency here) has made no overtures of this kind, but the issue is far from over. If the Army finds systemic problems in its interrogation practices (which it probably will), and blames some of these problems on the civilian contractors (which it might), then I think we could see some future government-contracting sanctions against Titan Corp. It's plausible to me that these contractors went off the reservation, and that there were inadquate control mechanisms in place to stop them from misbehaving. I'm not sure that the Army will punish the corporation for the misbehavior of one of its agents. But it certainly can impute this behavior to the company if it finds evidence of neglect or poor supervision on Titan's part. Look for those details in the investigation reports when they're made public.

3 chains of command - one held accountable in court thus far;
Abuse probe widens to include intel unit and Afghan prison facility

The Los Angeles Times reports this morning that two low-ranking military intelligence soldiers have had their Iraq tours "involuntarily extended" in order to facilitate their investigation by Army law enforcement officials. The two soldiers, who were reserve Military Intelligence specialists, worked at Abu Ghraib as MI analysts. It's not clear yet what role these two men might have played in the prison.

U.S. Army Spcs. Armin J. Cruz and Israel Rivera, both members of a reserve unit in Texas, are so far the only military intelligence soldiers known to be at the scene of the mistreatment of Iraqi prisoners in a high-security cellblock at Abu Ghraib.

Neither Cruz nor Rivera has been charged. But their role in the burgeoning scandal may be an important link for investigators seeking to determine whether the abuses were the work of a rogue unit of military police, or were directed by intelligence officers pushing guards to "soften up" detainees for interrogation.

* * *
Senior military officials and defense lawyers said additional charges may be pending, raising the prospect that the criminal probe is poised to expand beyond the guilty plea of one MP and the planned courts-martial of six others accused of taking part in the abuse.

Neither Cruz nor Rivera could be reached for comment. Military officials at the Pentagon declined to describe their legal status, or say whether they are represented by attorneys. Both have been ordered to remain in Baghdad, months after the rest of their unit returned home.

* * *
In an interview, Houston defense attorney Guy L. Womack, who represents Army Cpl. Charles A. Graner Jr., said that he expected a wave of charges in coming weeks against military intelligence officers, who he believed were directing the abuse of prisoners on Tier 1A at Abu Ghraib.

"There is no way these low-ranking military police officers did this on their own," he said. "It's like pulling up a tree. There are roots going everywhere away from these guys. The MPs were not rogues. They were not criminals acting out some sort of fantasy. They were acting on orders, and they thought those orders were appropriate."

Analysis: There appear to have been at least three chains of command at Abu Ghraib. The first one, which prosecutors have begun to move up, was the Military Police chain of command. This one ran from the MPs in the 372d MP Company all the way up to BG Janis Karpinski at the top of the 800th MP Brigade. The second chain of command was the Military Intelligence chain, which ran from the junior MI soldiers doing interrogation and analysis to the MI Brigade Commander, COL Tom Pappas. The third chain of command was the spook chain of command, which I use to include all of the CIA, special operations, and contractor employees at Abu Ghraib. This third chain wasn't subject to the military command structure, and is not subject (except for the military special ops guys) to the Uniform Code of Military Justice.

Military prosecutors have started to move up the first chain by prosecuting 7 of the lowest ranking MPs on the scene. I think they're going to file charges against some of the officers soon, although it looks like some might have pled out to administrative punishment in exchange for testimony. (See, e.g., this Washington Post story describing the proffered testimony of CPT Donald Reese, the company commander.) Presumably, military prosecutors are about to start on the second chain of command — the military intelligence chain of command. We should start to see charges brought in the next few weeks against MI interrogators, linguists, and leaders.

What about the third chain? So far, the Justice Department has not rushed in to prosecute civilian contractors or spooks (i.e. "OGA" employees) at Abu Ghraib. Earlier, I wrote that the Military Extraterritorial Jurisdiction Act of 2000 had never been used, and that prosecutors were wary to use it in this case. However, that appears to be a mistake. This act has been used to criminally prosecute an Air Force dependent for second-degree murder by the U.S. Attorney's Office for the Central District of California (Los Angeles):

Latasha Lorraine Arnt was turned over to U.S. Marshals on Sunday and returned to the United States. She had been detained at Incirlik since May 27 in connection with the death of her husband, Staff Sgt. Matthias A. Arnt III, who died at about 1:30 a.m. that day, according to a 39th Wing Public Affairs Office release.

Details of the killing were not made available.

Even though the slaying took place in Turkey, the U.S. Attorney's Office for the Central District of California assumed jurisdiction of the case because the suspect, who is a civilian, cannot be tried under the Uniform Code of Military Justice.

Turkey officials waved jurisdiction of the case because it did not involve any Turkish nationals, Edmonson said.

The case was sent to California because that is the home of record for the accused.

* * *
Latasha Arnt was formally indicted by the grand jury for the U.S. District Court for the Central District of California, 60 miles east of Los Angeles, on May 30. She appeared in court Tuesday in Riverside, Calif., and was ordered held without bail.

So far, federal prosecutors have not rushed in to charge any of the non-military personnel at Abu Ghraib. Until now, we've all thought that MEJA was an untested statute, and that some of DOJ's reticence might owe to that fact. However, it now appears that MEJA has been used, although not subjected to any kind of appellate scrutiny, and that a template for its use does exist. I think this adds more support to the argument that DOJ ought to step in here to investigate and prosecute the non-military folks who have committed crimes at Abu Ghraib. But we'll see what happens — more to follow.

Update I: The New York Times reports today that Army investigators are looking hard at the 519th MI Battalion, part of the second chain of command described above. Specifically, A Company and its leaders are under investigation. This unit oversaw interrogations in both Afghanistan and Iraq where deaths or physical abuse took place, and its work in these two locations may indicate the presence of a larger problem within the military's interrogation and detention system in Southwest and Central Asia:

WASHINGTON, May 23 — A military intelligence unit that oversaw interrogations at Abu Ghraib prison in Iraq was also in charge of questioning at a detention center in Afghanistan where two prisoners died in December 2002 in incidents that are being investigated as homicides.

For both of the Afghan prisoners, who died in a center known as the Bagram Collection Point, the cause of death listed on certificates signed by American pathologists included blunt force injuries to their legs. Interrogations at the center were supervised by Company A, 519th Military Intelligence Battalion, which moved on early in 2003 to Iraq, where some of its members were assigned to the Joint Interrogation and Debriefing Center at Abu Ghraib. Its service in Afghanistan was known, but its work at Bagram at the time of the deaths has now emerged in interviews with former prisoners, military officials and from documents.

* * *
At least one officer, Capt. Carolyn A. Wood, served in supervisory positions at the interrogation units both at the Bagram Collection Point from July 2002 to December 2003 and then again at the joint center at Abu Ghraib, according to Army officials. That center was established in the fall of 2003. In Congressional testimony last week, a senior Army lawyer, Col. Marc Warren, praised Captain Wood as an officer who took initiative in Iraq at a time when American commanders had yet to spell out rules for interrogation. But he also singled out Captain Wood and her unit as having brought to Iraq interrogation procedures developed during their service in Afghanistan. No one is known to have accused Captain Wood of any wrongdoing in connection with the abuses at Abu Ghraib or the deaths of prisoners there or in Afghanistan.

A spokesman for the 18th Airborne Corps, in Fort Bragg, N.C., identified Captain Wood as having been sent to Afghanistan in July 2002 as Company A's interrogation platoon leader, and having later assumed the duties of "operations officer in charge of the Bagram Collection Point." In a written statement sent Friday, that spokesman, Lt. Col. Billy Buckner, said Captain Wood had been assigned to the 519th Battalion at Abu Ghraib. But other Army officers have described her as having served as the officer in charge of the interrogation center there, under Lt. Col. Steve Jordan, a reservist who served as its director.

In an interview on Sunday, Brig. Gen. Janis Karpinski, who oversaw Abu Ghraib prison in Iraq but has since been admonished and suspended from command, described Captain Wood as an impressive and well-spoken expert on interrogations who oversaw the center. Colonel Buckner said that Captain Wood's commanding officer in Iraq, Lt. Col. Robert Whalen, was not available for comment. To date, seven enlisted personnel from a military police unit have been the only soldiers charged with crimes in connection with the abuses at Abu Ghraib. But an Army report completed in March identified Colonel Jordan as among four people who may have been among those "directly or indirectly" responsible for the misconduct.

Clearly, something is going on beneath the surface of this report that we don't know about. I have a feeling that charges will surface in the next few days or weeks against these MI soldiers, because it seems implausible to me that the Army would take a plea from every single MI soldier and officer but prosecute some of the MPs at Abu Ghraib. However, stranger things have happened, so we'll see.

According to this report in Sunday's Washington Post, the answer is yes. CPT Rob Shuck, who is detailed to defend SSG Ivan "Chip" Frederick, says that the 372d MP Company commander will testify to that effect in court, offering what may be exculpatory testimony for the six junior MPs facing criminal charges for abuses at Abu Ghraib.

The lawyer, Capt. Robert Shuck, said he was told that Army Lt. Gen. Ricardo S. Sanchez and other senior military officers were aware of what was taking place on Tier 1A of Abu Ghraib. Shuck is assigned to defend Staff Sgt. Ivan L. "Chip" Frederick II of the 372nd Military Police Company. During an April 2 hearing that was open to the public, Shuck said the company commander, Capt. Donald J. Reese, was prepared to testify in exchange for immunity. The military prosecutor questioned Shuck about what Reese would say under oath.

"Are you saying that Captain Reese is going to testify that General Sanchez was there and saw this going on?" asked Capt. John McCabe, the military prosecutor.

"That's what he told me," Shuck said. "I am an officer of the court, sir, and I would not lie. I have got two children at home. I'm not going to risk my career."

Shuck also said a sergeant at the prison, First Sgt. Brian G. Lipinski, was prepared to testify that intelligence officers told him the abuse of detainees on the cellblock was "the right thing to do." Earlier this month, Lipinski declined to comment on the case.

So far, clear evidence has not emerged that high-level officers condoned or promoted the abusive practices. Officers at the prison have blamed the abuse on a few rogue, low-level military police officers from the 372nd, a company of U.S. Army Reservists based in Cresaptown, Md. The general in charge of the prisons in Iraq at the time has said that military intelligence officers took control of Abu Ghraib and gave the MPs "ideas."

Analysis: This is a huge break for the defense. First of all, the company commander and first sergeant will be much more credible witnesses than these six soldiers before a court martial, and thus, their testimony about higher headquarters orders will likely have a big impact on the military juries deciding these cases. Second, these leaders' testimony will corroborate the "we were just following orders" defense of the soldiers, by showing the level of command involvement at Abu Ghraib. If there was enough pressure from the top to make the CO and 1SG go along, then surely you can't expect some privates and sergeants to resist orders like these, right? (At least, that's the theory the defense will offer.) My prediction is that this testimony will be key to the defense, and that it may ultimately exculpate the defendants or result in a reduced sentence.

Of course, these six cases aren't the only thing on the table. This information could provide fuel for more investigations into the matter that look beyond the walls of Abu Ghraib. Specifically, there will now be calls for two broad investigations -- one into the chain of command, from PFC Lynndie England to Defense Secretary Donald Rumsfeld; and two, into the chain of intelligence, from the Abu Ghraib prison to the CIA, Pentagon and White House. Until now, most of the investigations have focused on the prison itself, and the way these acts were allowed to happen there. However, I think this information raises a lot of questions about how high the authorization went for this stuff. Together with the latest Sy Hersh report, I think there's now a stronger case for an independent investigation into the intelligence and command structures which enabled Abu Ghraib to happen.

More to follow.