The Pentagon lost one of the most persistent thorns in its side yestersday, with the death of retired Army Col. David Hackworth. [See AP report] "Hack", as he was known, succumbed at the age of 74 to bladder cancer, for which he was seeking treatment in Mexico; he attributed the cancer to chemical defoliant exposure from the Vietnam War. Hack was unquestionably one of this nation's legendary warriors. According to this release announcing his death, he spent 7 of his 26 years in the military in combat; was recommended for the Medal of Honor 3 times; was awarded the Distinguished Service Cross, and awarded 10 Silver Stars, 8 Bronze Stars and 8 Purple Hearts. He is best known for speaking out against the Vietnam War while there, an event which resulted in his acrimonious retirement from the Army; and also for his reporting on Adm. Jeremy Boorda's wearing of unauthorized insignia, which many believe led Adm. Boorda to commit suicide. Hack's legacy lives on in the books he has published, including the autobiographical "About Face", "Hazardous Duty", and "Steel My Soldiers' Hearts : The Hopeless to Hardcore Transformation of U.S. Army, 4th Battalion, 39th Infantry, Vietnam". Col. Hackworth's estate has requested that memorial contributions be sent to Soldiers For The Truth either by internet (http://www.sftt.org) or by mail to, PO Box 54365, Irving, California, 92619-4365.

I have long admired Hack. Like all of us, he had his shortcomings, and his detractors were always quick to pounce on those. Hack grew up in Santa Monica, California, like me, and enlisted in the U.S. Army at the age of 15 at the tail end of WWII. Hack dedicated himself fully to the pursuit of soldiering, and there is no doubt that he came to master it. Hack also devoted his life to his country, both while he served in uniform and afterwards, something I admire a great deal. Despite his disenchantment with the Army and the United States after Vietnam, Hack eventually returned to become one of this country's most strident advocates on defense policy issues. You could always rely on Hack to tell the story from the grunt's perspective, and also to call BS when he smelled it. On occasion, he was a little trigger-happy; I'm not sure all his criticisms hit the mark. But his heart was generally in the right place, and his work as a soldier and a patriot made this country stronger. I read all of his books, and while I didn't agree with every word, I certainly learned a lot from each one.

As Hack would say — keep "out-g'ing the g", wherever you are.

(Also see notes from Matt Rustler, Jeff Quinton, and James Joyner on Hack's death)

The Army issued a press release today saying that it has decided to authorize a new "Combat Action Badge" for all soldiers, regardless of occupation or unit type, who engage in direct combat with the enemy. I wrote on this two weeks ago when the Army was considering the adoption of a "Close Combat Badge", which would be awarded only to those soldiers in specific combat arms occupations who saw combat. My argument was that the Army should adopt a functional approach to awarding this badge — and award it to those soldiers who actually saw ground combat, regardless of unit-type or MOS. I even suggested that the badge be awarded not on a blanket basis, but on a certification basis by an O-6 or O-8 commander.

Apparently, the Army agreed with me:

Although the Close Combat Badge was once considered an option, Army leadership created the CAB instead to recognize all Soldiers who are in combat. They said the decision was based on input from leaders and Soldiers in the field.

"Warfare is still a human endeavor," said Gen. Peter J. Schoomaker, Army chief of staff. "Our intent is to recognize Soldiers who demonstrate and live the Warrior Ethos."

The CAB may be awarded to any Soldier, branch and military occupational specialty immaterial, performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized, who is personally present and actively engaging or being engaged by the enemy, and performing satisfactorily in accordance with the prescribed rules of engagement.

Commanders at the rank of major general will have award authority the CAB.

Hooah to SPC Imael, the female MP E-4 who asked Secretary Rumsfeld and Lt. Gen. David Barno the tough question on this issue at their April 13, 2005, townhall meeting in Afghanistan. Without your moral courage, it's unlikely this issue would've seen the light of day. (link corrected)

Update I: Josh White reports in the Washington Post on the story, and focuses on the gender issue lurking behind the Army's decision. I think it had less to do with that than with basic fairness, in all honesty. There are good arguments for having the combat infantryman's badge and the combat medic's badge, because of the nature of what they volunteer to do by virtue of their MOS. However, it's really hard to differentiate an MP unit doing MP and infantry work from an artillery unit retasked to do MP and infantry work, and I think this badge recognizes that.

Update II: Sandra Jontz reports in today's Stars & Stripes on how the gender issue is playing out for the Marines in Iraq. The Marines don't have all the funky badges and patches that the Army has, so they don't have the same issue. I don't imagine there will be any question about giving these women their Combat Action Ribbon:

In all, 14 women from Combat Logistics Battalion 8 were called away from their usual jobs of supplying ammunition, food, water, fuel and mail for the three-day offensive that kicked off in the pre-dawn hours Saturday about 15 miles northeast of Fallujah.

Cultural sensitivities precluded male Marines from searching women, so the female Marines were meant to deflate fears of Iraqi men and women, said the battalion executive officer, Maj. Larry Miller. It was a first in Iraq to have female Marines embedded at the lowest levels of infantry companies and working alongside their male counterparts, said Chief Warrant Officer 2 Jill St. John, 39, an embark officer with CLB-8.

"This is history. This is huge for us," St. John said. "I’ve been in the Marine Corps for 18 years, and this is my first opportunity to be out with an infantry company. Even five years ago, the Marine Corps wouldn’t be doing this. This is a major change in how we think women can be used in the military."

While female Marines were used in similar fashion during missions in Afghanistan, they were not fully integrated with line companies, St. John said.

"It wasn’t quite as dynamic as this. They’d wait at a camp in the rear and were called in when needed, often called in for resupply," such as bringing in food and water.

"I’m so sick of hearing females can’t do this and females can’t do that. Blah, blah, blah," said Cpl. Rachel Bergstrong, 20, of Cumming, Ga. "We’re in it as much as the grunts, and we love it."

The battalion’s Lima and India companies absorbed the women into their ranks, giving them the primary mission to search women and children suspected of hiding anything. But the female Marines’ presence was not intended to show a softer side of the Marine Corps, said Capt. Mark Liston, commander of India Company.

"They’re still a fighting force for us," he said. "With them, we can grab a wife [of a suspected insurgent], for example, put the screws to her, and find out where the husband might be hiding. And while it hasn’t been used here, [the insurgency has] been known to use female suicide bombers," Liston said.

Update III: I'm certainly not the first to suggest the idea of a function/mission-oriented "Combat Action Badge". Army Maj. Matthew DePirro offered the idea up in a May/June 2004 article for Armor magazine. And the ideas has been percolating within the blog world for sometime.

(Via SCOTUSblog) The Supreme Court has decided to hear the government's appeal of last November's decision by the 3rd Circuit Court of Appeals in FAIR v. Rumsfeld. [AP story here] A 2-1 majority of the 3rd Circuit held that the government could not condition the receipt of federal funds by colleges and universities on those schools' allowance of military recruiters on campus, pursuant to the "Solomon Amendment", codifed at 10 U.S.C. 983. According to the majority, such action by the government tramples on the First Amendment rights of law schools and law professors.

I am glad that the high court has taken this case, because I think it was wrongly decided by the 3rd Circuit. I feel quite strongly about the case, both because of my military service and my recent experience in law school. I co-authored a friend-of-the-court brief in that case, together with other law school student-veterans and appellate lawyer Howard Bashman, arguing for a contrary result. I have also written on the matter for Legal Affairs and for Slate. The crux of the matter, to me, is this: we ought to be encouraging America's best and brightest to enter the military. The Solomon Amendment furthers that Constitutional goal ("The Congress shall have Power . . . To raise and support Armies, [and] To make Rules for the Government and Regulation of the land and naval Forces"), and it should be upheld.

There is a compelling argument to be made against the "Don't Ask/Don't Tell" policy, which is codified at 10 U.S.C. 654. I personally do not support this policy, and look forward to the day when gays can serve openly in the military. However, I do not agree with those who target military recruiting efforts because of their disagreement with this law, for reasons more fully explained in this column. Ultimately, I think the long-term answer to reversing this policy and promoting tolerance within the military is to encourage graduates from those (small "l") liberal universities now fighting the Solomon Amendment to enter the armed forces. They will take with them the values they learned at places like Harvard, Columbia and UCLA, and change attitudes more surely than any act of Congress or Supreme Court opinion. This litigation may serve as a valuable symbolic protest, but I fear that in the long run, it does grave harm both to the military and to the cause for which these professors are fighting.

Nick Confessore reports in the New York Times about the effort underway to reestablish an ROTC detachment at Columbia University in New York City. There appears to be considerable support on campus — both among students and faculty — for ROTC, but the current proposal is stalled over concerns relating to the law prohibiting gays in the military. As an ROTC graduate from an elite public university (UCLA), I think this issue is enormously important, both to the military and to society. I hope that Columbia can resolve its concerns and reestablish ROTC for its students in the near future.

Update I: A commenter asked why I think this issue is so important; he also argues that "the less militarism and blind nationalism that people of this country, especially students, are exposed to, the better off we and the world will be." As a riposte, I offer this photograph from the Army Knowledge Online site:



Army 2nd Lt. Edward Harrison, the fire direction officer for Battery C, 3rd Battalion, 7th Field Artillery Regiment, 25th Infantry Division, shares smiles with a village elder during a patrol through the Shawli Kot District of southern Afghanistan. (Credit: U.S. Army)

This photo shows a young U.S. Army lieutenant shaking hands with an Afghan, with what appears to be a U.S. special operations soldier in the background wearing a baseball cap and DCU bottoms. I think this photo shows precisely why we must encourage America's best and brightest to serve in the military.

I cast no aspersions on 2nd Lt. Harrison or his background; for all I know, he graduated at the top of his class from West Point, and could've easily chosen to attend Harvard or Columbia had he chosen to. But the fact is that young Lt. Harrison is serving as the leading edge of American foreign policy. We may have State Department bureaucrats in Kabul and the United Nations, but it is young Lt. Harrison and his soldiers that will leave the most important impression on the Afghans they encounter. To the people whose hearts and minds we want to win, Lt. Harrison is America. Just as Europeans today remember their first impressions of Americans from encounters during WWII (which were largely positive), so too will this impression live on in the minds of those Afghans and others that Lt. Harrison meets.

As Dana Priest describes brilliantly in her book "The Mission", the American military has supplanted the State Department and other agencies as the preeminent agent of American diplomacy abroad. A U.S. soldier or Marine is more likely today to engage foreign governments and citizens than any other member of the U.S. government. We should care very much about who is doing that work in our name; it behooves us to put America's best and brightest young citizens into these roles so that they can put our best foot forward.

If we're going to make the devil's bargain with a country like Uzbekistan, we better make sure it's worth it.

Don Van Natta reports in Sunday's New York Times on the sketchy details of the United States' "extraordinary rendition" arrangements with the nation of Uzbekistan. Prior to 9/11, the State Department listed Uzbekistan as one of the worst human rights offenders in the world, describing it as a "authoritarian state with limited civil rights". After 9/11, however, the nation took on strategic importance because of its location and its willingness to work covertly with the U.S. government to conduct clandestine intelligence operations. According to the Times:

Immediately after the Sept. 11 attacks, however, the Bush administration turned to Uzbekistan as a partner in fighting global terrorism. The nation, a former Soviet republic in Central Asia, granted the United States the use of a military base for fighting the Taliban across the border in Afghanistan. President Bush welcomed President Islam Karimov of Uzbekistan to the White House, and the United States has given Uzbekistan more than $500 million for border control and other security measures.

Now there is growing evidence that the United States has sent terror suspects to Uzbekistan for detention and interrogation, even as Uzbekistan's treatment of its own prisoners continues to earn it admonishments from around the world, including from the State Department.

The so-called rendition program, under which the Central Intelligence Agency transfers terrorism suspects to foreign countries to be held and interrogated, has linked the United States to other countries with poor human rights records. But the turnabout in relations with Uzbekistan is particularly sharp. Before Sept. 11, 2001, there was little high-level contact between Washington and Tashkent, the Uzbek capital, beyond the United States' criticism.

Uzbekistan's role as a surrogate jailer for the United States was confirmed by a half-dozen current and former intelligence officials working in Europe, the Middle East and the United States. The C.I.A. declined to comment on the prisoner transfer program, but an intelligence official estimated that the number of terrorism suspects sent by the United States to Tashkent was in the dozens.

* * *
A senior C.I.A. official, speaking on condition of anonymity, said he would not discuss whether the United States had sent prisoners to Uzbekistan or anywhere else. But he said: "The United States does not engage in or condone torture. It does not send people anywhere to be tortured. And it does not knowingly receive information derived from torture."

As an exercise in sophistry, I can quite easily parse that CIA statement to produce a legal interpretation which would facilitate the U.S. extraordinary rendition program:

1. "The United States does not engage in or condone torture." This is correct on two accounts. First, the various agencies of the U.S. government have narrowly defined torture in such a way to allow the U.S. to conduct a long list of abusive tactics with the good faith believe that they have not actually crossed the line to torture. Note that the speaker does not say "cruel, inhmane or degrading" treatment, or "physical or mental coercion", or some broader standard. The chosen standard here is "torture", and that the U.S. has set that bar very high indeed through legal memoranda over the past four years. Second, the whole point of "extraordinary rendition" is that the U.S. does not actually engage in the torturous practices itself, but rather, contracts with its allies to conduct its "wet work". This statement is undoubtedly correct, but it is also quite revealing.

2. "It does not send people anywhere to be tortured." Yes, but here the issue is one of knowledge and intent. As reported in Jane Mayer's brilliant New Yorker article "Outsourcing Torture", the relevant legal standard from the 1994 Convention Against Torture is whether there exist "substantial grounds for believing" that a detainee will be tortured abroad. As Marty Lederman said in the article, what about when you "kind of know" that they will be tortured, or you think they might be but have been promised (with a wink and nod) that they won't be? Then, the situation becomes more gray. Gray enough, at least, to allow the CIA to make this statement with a straight face. The connotation behind this quote is that the U.S. does not knowingly and purposefully send people abroad to be tortured. But that doesn't mean we're not doing it.

3. "And it does not knowingly receive information derived from torture." Every lawyer's Spidey sense ought to go off when he/she sees a word like "knowingly", because it's a legal term of art that has undoubtedly been planted in this guy's mind by the CIA general counsel. Model Penal Code Sec. 2.02 defines "knowingly" this way:

A person acts knowingly with respect to a material element of an offense when:

(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and

(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

The implicit message is that the U.S. does receive information derived from torture, but our level of knowledge does not rise to the level of "knowingly". Given the track record of countries like Egypt and Uzbekistan, it's hard to imagine how this could be the case — what rational government official could conclude any differently about information squeezed from detainees there? Once again, sophisticated lawyering may be the answer here. If the relevant government officials do not know about the sources and methods used, and the detaining governments make pro forma assurances that torture was not used, then we've got a whole different ball game.

"The gloves came off" after 9/11, or so we have been told. This was especially true in the area of "human intelligence" ("HUMINT"), because the U.S. had woefully few HUMINT assets in place before and after 9/11 which could gather information about Al Qaeda. Capturing and squeezing prisoners for intel is a time-honored tactic in warfare, and it was seized upon by the U.S. after 9/11. Time and time again, the administration has made the argument that it must pursue HUMINT with a new zeal, and in a new way, because this is a new kind of war.

But is that really true?

As I wrote to some friends last week on an academic list-serv, this is not a new kind of war in the general sense. There are aspects of this war which look like deja vu to anyone who's studied the British effort in Malaysia, the French efforts in Algeria, the British and Israeli experience in Palestine and Israel over the past several decades, the U.S. Marines' experience in the Philippines and Latin America, the recent Philippine experience fighting Abu Sayyaf, et cetera. Much as some may think otherwise, counter-insurgency and its cousin counter-terrorism are old businesses with a lot of history. It may be another example of American exceptionalism that we think we're the first ones to face these questions, or that somehow, we're the first ones to properly answer them.

At least two arguments which have been offered to reject the "old" paradigm of war in favor of new rules for detentions and interrogations. I would sketch those out this way:

1. "Today's enemies are wily and trained to resist conventional interrogation techniques." Perhaps. But so are conventional soldiers, and they're fully entitled to Geneva III protection. Every U.S. soldier is trained to abide by a "Code of Conduct". DOD has also promulgated a specific Code of Conduct for personnel captured by terrorist groups. We also train every U.S. pilot and special operations soldier to resist enemy interrogation techniques (much like those used at Abu Ghraib and Gitmo) during the military's Survival, Evasion, Resistance and Escape (SERE) course. These codes grow from norms which have existed within Western militaries for some time that have a great deal to do with basic notions of honor, loyalty and fidelity. The basic idea is that you should not dishonor your brothers still in the fight by spilling your guts to the enemy, and that you should resist as much as possible. Some of the most powerful writing on this has come from those servicemembers held as POWs during WWII by Japan, and by North Vietnam during the Vietnam conflict.

However, all of this is basically irrelevant, because I can't find "wily" or "resistant to interrogation" anywhere in Geneva's definitions of who should be entitled to Geneva protection. (See Geneva III; Geneva IV) If any nation mistreated U.S. personnel held as prisoners, and then justified it on the basis of their Code of Conduct or SERE training, we would immediately brand them as war criminals and call for a retaliatory strike. Yet, when the shoe is on our foot, we're willing to accept this line of argument.

2. "Today's terrorists are more important interrogation targets than yesterday's soldiers." Here, I think there may be a more valid argument. If we're talking about interrogating the senior leaders of Al Qaeda, like Khalid Sheikh Mohammed, then I think that you can make the argument that he's analogous to someone like Japanese Adm. Isoroku Yamamoto or North Vietnamese Gen. Vo Nguyen Giap, and that the information locked within his head is of strategic importance. I also think there's some merit to the contention that you cannot get a lot of information on terrorist organizations through conventional means — there are no ships and silos to watch via satellite, and tracking "troop" movements through the world's airports and train stations is quite difficult. (Although, this would be a good argument for programs like Total Information Awareness that can do such surveillance, not for interrogations per se.)

However, my agreement here hinges on one giant assumption: that we actually have people who hold strategic intelligence value, and a second assumption that our interrogation methods will get the information we want. All of the reporting that I've seen from Iraq and Afghanistan indicates that we have appallingly poor mechanisms for screening detainees — and that the mechanisms in place have contributed to an overwhelmingly unimportant detainee pool at Gitmo and in Iraq. There is really very little evidence to suggest that we've used our high-stress interrogation techniques only on those detainees with something approaching intelligence value. At best, it appears that we're using it on low-level foot soldiers or local commanders, who at best have a "grunt's eye view" of the Al Qaeda organization, but whose intel value diminishes rapidly over time. This is valuable, but certainly not as valuable as hyped — and certainly not valuable enough to justify the jettisoning of the entire law of armed conflict.

The second assumption is perhaps more problematic. The evidence is so muddled and conflicted when it comes to the efficacy of coercive interrogation that I find it hard to justify these tactics at all, especially given the blowback from their use. Here, I think the "nuclear ticking bomb" hypo is overused as a way to justify *any* methods which might find the bomb. And if we had methods that would lead to finding the bomb, I might agree. But this is not "24" — our methods are more likely to produce a false confession than anything of value, assuming the guy we've got under the lights actually knows a damn thing (a dubious assumption). It's theoretically possible that some coercive tactics, such as those detailed in the CIA's KUBARK manual, administered in highly controlled settings by highly trained professionals, could lead to a confession. But they also just might break the mind and soul of the person without producing anything. Here again, I refer to the literature from Vietnam, where POWs like John McCain endured hell but were still able to either resist or BS their captors.

In the final analysis, I remain highly skeptical of any tradeoffs between ideals and interests. As I wrote for Slate in August 2004:

"... there are few slopes more slippery than that from small war crimes to large ones. Any wartime action, no matter how heinous, can always be justified by some battlefield exigency. We must give our field commanders the legal and ethical framework they need to decide which war crimes are really worth it, if any."

I'm not convinced our deals with Uzbekistan are worth it.