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The evolving position followed criticism of the intelligence reports about Iraq from the C.I.A.'s former chief weapons inspector, David A. Kay, comments that increased pressure on the C.I.A. and intensified the political debate in Washington over who was responsible for shaping the prewar intelligence that President Bush used to justify toppling Saddam Hussein.Analysis: The administration never relied on WMD as its only reason for war. Indeed, it wasn't even the best legal argument that it offered. Pentagon and State Department lawyers agreed that the best legal argument for the war was Iraq's material breach of the 1991 cease-fire, along with various other resolutions since then. The WMD issue was mostly a political one, meant to persuade people for whom law wasn't good enough, and to answer the question of "why now?"
While Republican leaders have focused on the C.I.A. and how it gathered intelligence, Democrats have called for a close look at how the White House used that information.
On Monday White House officials were no longer asserting that stockpiles of banned weapons would eventually be found.
Scott McClellan, the White House spokesman, told reporters en route to an appearance by President Bush in Little Rock, Ark., that the administration would wait for the weapons search team, the Iraq Survey Group, to complete its work before drawing any conclusions about the quality of the intelligence available.
But he said that whatever the group's conclusions, Mr. Bush had done the correct thing in deposing Mr. Hussein because Iraq was clearly working on chemical, biological and nuclear weapons.
"We know he had the intention, we know he had the capability," Mr. McClellan said. "And, given his history and given the events of Sept. 11, we could not afford to rely on the good intentions of Saddam Hussein."
Having considered the parties' arguments and the relevant law, including the rulings in [Humanitarian Law Project] I, the Court concludes that the term "expert advice or assistance," like the terms "training" and "personnel," is not "sufficiently clear so as to allow persons of 'ordinary intelligence a reasonable opportunity to know what is prohibited.'" [Citations omitted] Defendants [the Justice Department] have failed to adequately distinguish the provision of "expert advice or assistance" from the provision of "training" or "personnel" in a way that allows the Court to reconcile its prior finding that the terms "training" and "personnel" are impermissably vague, with a finding that the term "expert advice or assistance" is not.Analysis: Interestingly, Judge Collins only enjoined the Justice Department from applying these two sections of federal law to the plaintiffs at bar -- not to the entire Justice Department and any such prosecutions it may engage in across the country. That's not surprising, and it's probably the right legal outcome. But it does limit the scope of this ruling.
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The "expert advice or assistance" Plaintiffs seek to offer includes advocacy and associational activities protected by the First Amendment, which Defendants concde are not prohibited under the USA PATRIOT Act. Despitethis, the USA PATRIOT Act places no limitation on the type of expert advice and assistance which is prohibited, and instead bans the provision of all expert advice and assistance regardless of its nature. Thus, like the terms "personnel" and "training," "expert advice or assistance" "could be construed to include unequivocally pure speech and advocacy protected by the First Amendment" or to "encompass First Amendment protected activities." Humanitarian Law Project v. Ashcroft, ___ F.3d ____ (9th Cir. 2003) (finding the words "training" and "personnel" in 18 U.S.C. 2339b to be unconstitutionally vague under the First Amendment).
Judge Collins's opinion follows several others striking down federal laws aimed at cutting off foreign terrorist groups from their backers in the U.S. In July, a federal judge in New York threw out some charges against attorney Lynne Stewart, who is accused of transmitting instructions from her imprisoned client, Sheikh Omar Abdel Rahman, to his followers on the outside. In that case, District Judge John Koeltl ruled that sections outlawing the provision of "personnel" to terrorist groups were unconstitutionally vague, but he let other charges stand.
In November, federal prosecutors filed a new indictment against Ms. Stewart. Her client, Sheikh Rahman, is serving a life sentence for conspiring to blow up New York City landmarks and is under strict regulations prohibiting his communication with the public.
The case before Judge Collins originated well before Sept. 11, 2001, and was brought by five organizations and two U.S. citizens who were challenging the 1996 antiterrorism law and seeking to maintain contacts with Kurdish and Tamil groups that the U.S. government had designated as terrorist organizations. They later added a challenge to the USA Patriot Act as well.
Judge Collins previously struck down a "personnel" provision under the 1996 law that is similar to the one she struck down Monday. Last month, a federal appeals panel in San Francisco affirmed her rulings doing so.
The government has appealed that ruling to the full Ninth U.S. Circuit Court of Appeals, noting that a federal judge in Alexandria, Va., adopted its view of the material-support statute in the case of John Walker Lindh. In 2002, District Judge T.S. Ellis III ruled that the ban on providing "personnel" could be applied to Mr. Lindh, an American who fought alongside the Taliban in Afghanistan.
Doug Kelsey, the deputy director of the DoD's school system, said that the schools are trying to live up to the spirit of the legislation despite the fact that the DoE has no jurisdiction over DoD schools. "We actively comply with the intent of the law," he said.Maybe... but my friend Pete makes a good point that DOD students' scores on the all-important Scholastic Aptitude Test have been slipping. More than any NCLBA-mandated testing, the SAT has a real effect on the ability of these students to pursue post-secondary education and economic opportunity. But above and beyond any policy considerations, there is a normative reason why we should be concerned about this lack of accountability in DOD schools, which Pete sums up well:
Kelsey said that DoD schools set high standards for its students and teachers, citing high performance on standardized tests and graduation rates higher than 95%.
. . . .
DoD 8th-graders ranked second compared to the 50 states on the 2002 National Assessment of Educational Progress reading tests. The military's 4th-graders ranked fourth among the states on the 2002 NAEP reading exam. African-American and Hispanic students perform better overall in the military's schools than anywhere else in the nation.
Considering that DOD schools serve the children of those who are risking their lives to defend our country, and given that our leadership has determined the NCLBA as the best way to ensure our children and schools meet high standards of excellence, don't we owe it to our children to make the standards of the NCLBA mandatory on the DoD schools, instead of relying on their assurances that they will "comply with the intent of the law?"
George Mason law school has an unusually large number of students who have served in the military or have a strong patriotic interest in supporting the armed forces, and who are eager for a clinical experience. The school, whose faculty share their interest, has preliminarily confirmed with defenseofficials the existence of unmet legal needs among active duty members of the services and their families (including those who have been mobilized from the reserve forces). Seeking to match those interests with the need, the Clinic for Legal Assistance to Servicemembers (CLAS) began formative activities in January, 2004. Initial law student participants, who include a retired Navy captain, a retired Army lieutenant colonel with enlisted experience, a woman who spent seven enlisted years in the Air Force including the first Gulf war, and a former Senate staffer who hails from a devoted Marine family, will work with the clinic's executive director, Professor Joseph Zengerle, a Vietnam veteran who instituted the seminar on Homeland Security and the War on Terror at the law school. The clinic is now conducting a needs assessment to determine the gaps students might help fill, which commenced with a meeting at Walter Reed Army Medical Center. Studying substantive laws like the Servicemembers Civil Relief Act, collaborating with bar and nonprofit service organizations, establishing compliance with applicable requirements under federal law and other authorities, and structuring the organizational and academic elements of a new clinic, are simultaneously ongoing. CLAS just received its initial donation, a private grant to match the first $25,000 in contributions.Analysis: Suffice to say, I don't think we're going to see anything like this at UCLA in the near future, despite the existence of an active veterans association at the law school. Our veterans group does work with an organization called New Directions at the West L.A. VA hospital, but we don't have anything like this in the way of institutional support. Notwithstanding that fact, I think this is an outstanding idea, and I hope to support it any way that I can. According to a note on Eugene Volokh's page, Prof. Zengerle can be reached at: Joe Zengerle; George Mason University School of Law; 3301 North Fairfax Drive, #404; Arlington, VA 22201 -- or by email at jzengerl [at] gmu.edu. This is a worthy cause -- if you can donate, please do.
The second reason why the fears of the fracturing of the public sphere seem overstated is the nature of network topologies. The Internet, and in particular, the blogosphere, has a scale free topology. As the Internet expands, and more links are added, a larger proportion of links are made to a relatively small number of sites. The result is that, over time, a relatively small number of sites receive the lion's share of links. They are hubs in the network that forms the Internet's public sphere. Go to The Truth Laid Bear and look at the blogosphere ecosystem and traffic rankings and you will see what I mean. A handful of blogs have an enormous number of links to them and a considerable amount of traffic, and as you go down the list, the number of links and amount of traffic rapidly diminishes after the first dozen or so sites, until you get to a fairly flat curve.Analysis: I agree with much of what Prof. Balkin says. The free speech metaphor of a "marketplace of ideas", which traces back to Justice Holmes' stirring dissent in Abrams v. United States, applies to weblogs as well as any other phenomenon on the Internet. Just as in the real marketplace, bad products sometimes get their day in the sun. (Snake oil or spray-on hair anyone?) But over time, the good ideas and good bloggers have tended to rise to the top, just as they would if they were goods or services in a real marketplace. If there is a downside to the weblog world, it is that there is no mechanism for the cleaning of bad ideas, as there is in the real marketplace where bad ideas result in bankruptcy and business failure. In the blogosphere, bad ideas tend to have more staying power and resilience, especially because it costs nothing to run a weblog. But that only raises the stakes for those of us who are trying to put "good speech" out there. As Justice Holmes wrote nearly 90 years ago:
As long as the Internet, and in particular, that portion of the Internet where people get their news, has a scale free topology, Sunstein's fear of an unacceptably fractured public sphere is overstated. Indeed, the problem may be precisely the opposite of the one he imagines: A relative handful of news sites, or a relative handful of bloggers may have a very large amount of power over public opinion because they are the key hubs or nodes in the network of Internet public opinion. That, in some ways, is similar to (although not identical with) the condition we had with the traditional mass media. While the dominance of the traditional mass media in the public sphere was created by government's control over the air waves (in the case of radio and television) and economies of scale and the effects of local advertising (in the case of newspapers), the dominance of a small number of hubs or nodes in the public sphere on the Internet is caused by power laws that apply to certain types of communications networks, of which the Internet is a particularly salient example. To be sure, the concentration of influence over public opinion on the Internet is much less than we had in the traditional mass media. But is not at all clear to me that this is necessarily a bad thing.
"... when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution."And this is true of the Internet as well. We ought not be afraid of bad ideas, whether they come from the right or left. But we ought not be afraid speaking out against bad ideas either.
In order to meet U.S. national security priorities, the fiscal 2005 budget request reflects the president's continued commitment to prosecute the War on Terror and balances support for long-term transformation of technology and defense capabilities with resources for current global operations and requirements.More to follow...
Secretary of Defense Donald Rumsfeld said the budget highlights the president's priority to provide the pay, benefits and other quality-of-life measures needed to recruit and retain the highest quality volunteers for service in the active and reserve forces.
"The president three years ago directed that we consider how best to transform this department to ensure our nation has the capabilities and people needed for the national security circumstances of the 21st century. We have made significant progress," Rumsfeld said. "This budget builds upon past work to provide for a ready force made up of the talents and skills needed in our new national security environment. The men and women in uniform are demonstrating the joint and combined warfighting capabilities our nation will need to prevail in the Global War on Terror."
The fiscal 2005 defense budget provides for investment in improved and better-integrated intelligence capabilities and emphasizes readiness and training. This budget also supports continued transformation of the joint force and provides for homeland defense needs. The budget reflects the tools previously provided by Congress for better managing the force, including the first steps toward implementation of the National Security Personnel System reforms signed into law by the president in 2003.
[Moskos] found morale was good among regular soldiers and was markedly lower among reserve component soldiers.According to this report in USA Today, reservists have already started to vote with their feet. A story earlier this week reported that the Army Reserve has having serious trouble with managing its personnel in the wake of numerous post-9/11 mobilizations. It has been widely thought that the problem affected the National Guard as well, though National Guard Bureau officials have generally denied such claims in the absence of data. Here's what Dave Moniz had to say in today's USA Today:
In a preliminary report written for the acting secretary of the Army, Les Brownlee, Moskos, a respected author and professor emeritus at Northwestern University, says he found a "higher level of morale than was anticipated" among regular Army soldiers.
Moskos noted "exceptional levels of performance under very demanding conditions" and said he had no recommendation for major changes in command policies affecting the troops. He did have suggested changes in personnel policies.
In contrast to the high morale of regular soldiers, Moskos says, he found lower morale among reserve components - Army Reserves and Army National Guard. The sociologist said that "the complaint that reservists were second-class citizens in Operation Iraqi Freedom was frequently heard."
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Moskos wrote that the lower morale among reserves was specific to Iraq, and that he had found morale among reservists doing peacekeeping duty in Bosnia and Kosovo generally higher and on a par with regular soldiers.
Clearly, with the Army relying so heavily on Reserve and National Guard soldiers to do its job, someone at the top needs to be listening to Charlie Moskos and taking corrective action. This is not the time to let reserve component morale sink when the percentage of reservists in the force occupying Iraq are rising to new highs - and when many will have the opportunity to vote with their feet and abandon the Reserves and Guard at re-enlistment time if they continue to feel badly used and poorly treated.
A recent survey of 5,000 soldiers from 15 states showed that the rate at which Army Guard members choose to leave the military could jump — to 20-22% a year among those who have served long overseas tours, typically 12 months.Analysis: Yeah, I agree with that. Much of this problem traces to the overreliance of America's military on the reserve components. A generation ago, Gen. Creighton Abrams removed a great deal of support capability from the active force and put it into the reserves, as a mechanism to prevent any future wars like Vietnam where the President chose to fought without the mobilization of the reserves -- and without popular support. As I wrote in an op-ed last year, this concept has run into serious problems since Sept. 11, with so many reserve units being called up for long-term deployments.
Last year, about 16% of all Army Guard troops left the military as a result of retirement, injuries or a decision not to re-enlist, a figure slightly below the annual historical average of 18%. Among Guard soldiers returning from deployments in the USA and overseas from 2001 to 2003, only 12.5% left, statistics show.
The survey results are raising concerns, given the strains on Guard and Reserve troops and widespread worries that part-time soldiers are being relied on too much in the war on terrorism. Some 97,000 soldiers — about 28% of the 350,000-member Army Guard — are now on active duty in the USA or overseas.
The Pentagon will continue to rely heavily on the Army Guard and Army Reserve in Iraq, where by May, nearly 40% of the more than 100,000 U.S. troops will be Guard or Reserve.
Some military personnel analysts believe the survey hints at the leading edge of an exodus because part-timers are losing patience and don't want to be treated like full-time troops.
Army Gen. Creighton W. Abrams played a key role in crafting this "total force" concept, wherein key support units were placed in the reserves that active-duty combat units would need for any major war. The idea was that no president could again wage an unpopular war, because a future war would require reserve mobilization, and that would require popular support.You can't have a steak & lobster military on a McDonald's budget. Over the last few decades, we have purchased readiness in the reserves at a very low cost. We have essentially maintained skeleton units in the reserves on the assumption that we could train these men and women for war when the time came, and that we could infuse resources/equipment/personnel into these units when the need came. Well, the need is here, and there's no time to do just that before we send these units into combat. The result is that reservists have gone to combat without the resources, training, personnel, leadership, and equipment necessary to get the job done. Body armor is just one example. If you look at the MTOE (Modified Table of Organization and Equipment) of any reserve unit, it's a full generation behind its active-duty counterpart.
The system worked fairly well during the Cold War, when everyone in the active and reserve force trained for the big war with the Soviet Union. After the Berlin Wall fell and the first Gulf War ended, things changed. America's military transitioned from a "forward-deployed" force focused on the Soviet Union to an expeditionary force that deployed to small trouble spots around the world.
The role of the reserves changed as well. Support units such as military police, civil affairs and logistics now mattered more for missions like Somalia and Haiti than the combat units in the active force. The operational tempo for reservists increased steadily during the 1990s.
After the Sept. 11 attacks, America mobilized its reserves in a way that hadn't been seen since Korea. At home and abroad, reservists performed missions that active soldiers couldn't (such as guarding airports) and supported the active force in Afghanistan and elsewhere. Since Sept. 11, no fewer than 40,000 reservists have been on active duty at any given time, both for homeland security missions and combat operations overseas. Today, the Defense Department has 168,915 reservists on active duty in support of the war on terrorism. [The number today is nearly 40,000 higher than this, according to the Pentagon.] Senior officials have made it clear that the military could not function without the support of the reserves.
Yet, America's reserves have never achieved full equality with their active-duty counterparts. The reservists marooned at Fort Stewart -- as well as their reserve brethren around the world -- have long suffered from a lack of resources. America gives less to its reserve forces at every step -- recruiting, training, deployment, equipment, manning, medical care, even veterans' benefits. In the Army Reserve and National Guard, the nation gets a bargain -- trained soldiers with civilian experience who can be called at a moment's notice, but paid for only one weekend a month and two weeks in the summer.
Even in Iraq, reservists had to make do with less than their active-duty counterparts. Reserve units typically stand last in line for new equipment, behind active-duty Army units and the Marines. National Guard and Army Reserve units deployed to Iraq with radios older than many of their soldiers -- radios that could not talk securely with the active-duty units they worked with.
Many reserve units drove into Iraq with cargo trucks that were more than 30 years old. Reservists were also last in line to receive the military's new "Interceptor" body armor, specially designed to stop bullets from an AK-47.
Inside the United States, where the war began, we must continue to give homeland security and law enforcement personnel every tool they need to defend us.It appears that Congress is less than willing to ask "how high?" when the President says "jump". Eric Lichtblau reports in the New York Times that Congressional leaders on both sides of the aisle are hesitant to act on this legislation at this moment, before the 2004 election, and unclear as to why the President has made the USA PATRIOT Act an issue before the election.
And one of those essential tools is the Patriot Act, which allows federal law enforcement to better share information, to track terrorists, to disrupt their cells and to seize their assets. For years, we have used similar provisions to catch embezzlers and drug traffickers. If these methods are good for hunting criminals, they are even more important for hunting terrorists.
Key provisions of the Patriot Act are set to expire next year.
The terrorist threat will not expire on that schedule.
Our law enforcement needs this vital legislation to protect our citizens. You need to renew the Patriot Act.
Crucial provisions of the law do not expire until the end of 2005, and Mr. Bush's push for their renewal in his State of the Union speech, which he repeated on Wednesday, caught many lawmakers off guard.Analysis: The White House said that the President was putting down a "marker" as to what his position was on the bill. But I think in reality, he's inviting a fight over civil rights and civil liberties -- a fight which can only help the Democrats once they choose a candidate and coalesce on the issues they're going to campaign on in 2004. This will likely be one of their issues, and the President has served it up on a platter. The Democrats will likely argue, as Fred Kaplan notes in this Slate article, that real spending on homeland security has actually dropped since 9/11 during this presidency.
"I'd say he's about a year early," said Senator Charles E. Grassley, Republican of Iowa and a leading member of the judiciary committee. "If I were running for president, I wouldn't have brought it up now."
Mr. Grassley, like other members of Congress interviewed on Wednesday, said that while the antiterrorism act included some important law enforcement tools worth keeping, it was so far-reaching that its continuation needed careful scrutiny.
"I would not take a position of outright renewal at this point," he said.
"We must continue to give our homeland security and law enforcement personnel every tool they need to defend us."And the Democrats will connect the dots to the Patriot Act too, saying that this Act diminishes "[t]he right of the people to be secure in their persons, houses, papers, and effects" (to quote the 4th Amendment), and that the Bush Administration actually threatens the personal security of Americans through its aggressive style of law enforcement. I don't necessarily agree with this entire argument, but I think it's a plausible interpretation of the facts and one that can be used to great political effect.
Yet this is precisely what President Bush has failed to do. His homeland security budget for fiscal year 2004 was smaller than the budget for FY 2003. He has yet to order a serious effort to develop or procure WMD-detecting sensors. Security of cargo on ships and commercial airliners is riddled with holes. The borders are sieves. Most local police and fire departments lack the money, gear, and training to prevent, or to deal with the aftermath of, terrorist attacks.
The Lopez show was among several cited in a General Accounting Office report released this month that found more than $430,000 in improper, questionable or unsupported USO tour expenses charged to the Pentagon over a two-year period.Analysis: C'mon guys, let's get this admin stuff right. These tours do a lot of good for our soldiers overseas, and I'm not all that upset at paying for a first-class ticket or some liquor if that's what it takes to put J-Lo in front of the 4th Infantry Division. (Especially if we're willing to use private military jets to shuttle around senior generals and defense officials.) But we need to tighten our shot group here and do it right. That means reading the FAR and the DFAR and figuring out exactly what can be done with government money, and asking private sources to pay for the rest.
The GAO study, which looked at 10 randomly selected tours during 2000 and 2001, found no evidence of malfeasance in the nonprofit organization's use of government money. Nor was there any finding that the entertainers did anything wrong.
But the investigation, requested by Rep. C.W. "Bill" Young (R-Fla.), found that taxpayers repeatedly paid for first-class plane tickets, liquor and limousine services for celebrities, in violation of Pentagon and federal regulations.
Any such luxury expenses are supposed to be paid out of the USO's private donations, not the money it gets from Congress. The GAO report blamed sloppy bookkeeping by ill-trained employees.
The investigation, however, prompted the Pentagon's Armed Forces Entertainment division, which disburses federal funds to the USO, to review all tours since 1998; so far, it has uncovered an additional $73,000 in improper payments and recovered more than $140,000 from the USO.
Lt. Gen. James R. Helmly said his staff is working on an overhaul of the reserve aimed in part at treating soldiers better and being more honest with them about how long they're likely to be deployed. Helmly said the reserve force bureaucracy bungled the mobilization of soldiers for the war in Iraq, and gave them a "pipe dream" instead of honest information about how long they might have to remain there.Analysis: There are a few important things to pull out of this story. The first is that the Army Reserve is having a retention crisis, and that this crisis is being masked by the current implementation of "stop loss" and "stop move" policies. The Pentagon and Army leadership has denied this fact, saying that the Army Reserve is not in fact having such a crisis, and that it has met its recruiting and retention targets for the most part since 9/11/01. I'm a bit closer to where the rubber meets the road in the reserves, and my gut told me that was wrong. Now, the Chief of the Army Reserve is saying he agrees with me -- and that such a crisis likely looms for every unit that redeploys from Iraq and comes out of the "stop loss" policy's scope.
"This is the first extended-duration war our nation has fought with an all-volunteer force," said Helmly. "We must be sensitive to that. And we must apply proactive, preventive measures to prevent a recruiting-retention crisis."
Helmly said his staff is engaged in an overhaul of the reserve aimed at turning the Army's part-time soldiers into a top-flight fighting force that can handle the strains of the global war on terrorism. In a Pentagon briefing for defense reporters, Helmly outlined an array of planned changes and bluntly described the force he took over in May 2002 as being dominated by bureaucrats who often ignored soldiers' needs.
In a recent memo, Helmly said, he told his subordinates that he was "really tired of going to see our reserve soldiers [and finding] they're short such simple things as goggles. It's about damn time you listen to your lawyers less and your conscience more. That will probably get me in trouble. But I told them, I want this stuff fixed."
"We've increased end strength substantially," said Rumsfeld, using the service term for the total number of soldiers.Analysis: Now that's a bit disingenuous. The Pentagon has not permanently increased its end strength because that's outside its power, and it has not requested such an increase in its FY04 budget act. Such an increase may be part of the FY05 National Defense Authorization Act, but I don't think that's gone over to the Hill yet. The Pentagon has "increased end strength substantially" in two major ways: 1) by involutarily extending soldiers on active duty through emergency "stop loss" policies, and 2) mobilizing hundreds of thousands of reservists. It's like saying you're fiscally fit when you're borrowing money up to your eyeballs... eventually, that borrowing's going to catch up to you.
The overall increase is about 36,000 troops, accomplished through the Pentagon's emergency order that temporarily bars service members from completing their enlistments or retiring until they finish their duty in Iraq or Afghanistan.
The government said it would allow the families and friends of troops flying to and from Iraq to escort them all the way to the airport gates, rather than getting stopped at security checkpoints. The Transportation Security Administration sent a memo last week to airport security directors asking them to develop procedures so members of the U.S. armed forces could be accompanied to and from their boarding gates, agency spokeswoman Amy von Walter said yesterday.