All your base are belong to politics

In my last column for the Winnipeg Sun, I discussed the Manitoba government’s byzantine method of funding municipal infrastructure and recommended transferring an annual amount to each municipality, letting them decide how to spend it. This would avoid politicization and ensure decisions are made by people who know the area best. I wonder if such a method might help the U.S. military. Yet again, we’re seeing Congress isn’t as knowledgeable about readiness as they think.

Army Secretary John McHugh – who, I should note, is also a career politician with no military experience, although he is far from the first Army Secretary with this type of résumé – is tired of Congress forcing the Pentagon to spend money maintaining “unusable” bases across the U.S. He is supportive of an Obama administration plan to have a round of base realignment and closure (BRAC) talks in 2015; the last time this group evaluated the military’s base needs was 2005. McHugh says the money currently being spent on outdated bases could have much better use.

You should be able to figure out why this move would be hugely problematic from a political and economic standpoint. Domestic bases often provide small towns with a majority of their income. Efforts to shut them down have always been met with fierce resistance, especially by members of Congress with bases in their districts. It’s the same mentality that, last year, had the government funding upgrades for tanks that the Pentagon didn’t need.

That’s not to say the BRAC process is ideal. The 2005  round went $14 billion over budget, although you would have to look at long-term savings and strategic benefits to get a clear picture of the effects of that particular overspending. It does give congressional opponents ammunition, and McHugh will need to answer to that if he wants a strong case for a 2015 BRAC round.

They’ll also need to consider forms of financial assistance to towns in line to take hits from base closures. These towns should have been taking steps long, long ago to diversify their economies and reduce their dependence on the federal government. But some direct assistance would help to grease the wheels. Also, I can’t disagree with the suggestion that foreign bases be examined first; a two-tiered approach would also make BRAC an easier sell.

Once McHugh has conceded to those, he can stop conceding. The military shouldn’t be forced to operate on decade-old information, as McHugh pointed out, nor should they be forced to pay for anything that doesn’t strengthen the military. It’s not their job to create economic growth. It’s the job of Congress to spend federal resources in a way that helps create conditions for growth, and not wasting them is part of that.

Let Putin handle this one

As we discussed this weekend, the immigration status of the Brothers Tsarnaev has sparked skepticism of proposed immigration reforms, some even suggesting their case could “derail” efforts to that end. To which I say: Huh? Reforms from the Gang of Eight have primarily concerned work visas and border security; terrorism didn’t come up in that coverage until the finger-pointing stage of the Boston Marathon attack aftermath kicked off. If Congress wants to add such considerations to the current bill, that’s something else – and a way to add them may come from Canada.

Right now, senators are sparring over whether or not Dzhokhar Tsarnaev should be tried as an “enemy combatant,” which would strip him of certain legal rights normally afforded to U.S. citizens, one of which he is through naturalization. One of those rights is, of course, the right to remain silent. Sen. Lindsey Graham (R-SC) says revoking this particular right will be the best way to get information out of him; Sen. Chuck Schumer (D-NY) says this is unnecessary, and a typical criminal trial will be enough for him.

Before I tell you about the Canadian idea, let’s discuss the “public safety exception” to Miranda rights. This exception is invoked when there is reasonable cause to believe that getting information out of a suspect before reading their rights will help stop an imminent threat to public safety. If statements made during this period are made voluntarily, they can stand in court, while compelled statements cannot. (Read Carl A. Benoit’s excellent piece on this.)

In the case of Tsarnaev, however, we have no more reason to believe that the public safety exception will be applicable; the imminence is no longer there. When he comes to, he likely will, and should, be Mirandized. And after that? Here’s the Canadian idea: After this happened, Conservative MP Devinder Shory (Calgary Northeast) proposed in February that the Canadian citizenship of dual nationals be revoked if they have engaged in terrorist acts. Our 1947 Citizenship Act says this can happen in cases of treason.

Why not do the same in the case of indiscriminate mass violence on U.S. soil, which in the case of the marathon involved foreign citizens as well as Americans? A typical argument against this idea is that it creates another tier of justice for naturalized citizens and immigrants, and can put them at risk of cruel and unusual punishment and/or persecution in their home countries. I say treason and terrorism are acceptable red lines that, if crossed, should be taken as a rejection of American hospitality.

Note the line in the U.S. Oath of Allegiance requiring new citizens to “support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic.” Becoming one of those enemies should mean that one has violated his or her oath to the nation.

Very early thoughts on the Boston bombing

As anyone who knows me can attest, I’m not very good at sentimentality, so I’ll quote my dad’s message of sorrow for the Boston Marathon bombings:

To my American family and friends. Words cannot express my sorrow adequately. I hope and pray that those injured heal quickly. I hope and pray that those responsible are caught and dealt with. I hope and pray for all Americans.

Couldn’t have said it better. It’s 6:32 p.m. CT on Monday as I’m writing this, and I imagine there’ll be plenty of updates over the next few hours. In the meantime, here are my thoughts as I’m watching CNN’s coverage (excellent work so far):

While everyone insists that we should not jump to conclusions, there’s no way it could apply to every potential conclusion one could draw from this attack. I think most of us are past the point of believing that this could possibly be an accident. Gov. Deval Patrick (D-MA) reports that only two explosive devices were found, not the over two that were initially reported; however, that’s enough for a deliberate pattern. We shouldn’t shy away from using the word “terrorism.” It may evoke images of certain types of people, but anyone who has lived long enough knows that terrorism has had and will keep having many faces.

The devices used in the attack have been described as “small” and “crude”; bystanders have reported being struck with ball bearings, which you can buy at any hardware store. That doesn’t make them less deadly, nor does it rule out the possibility of someone getting an order from a sophisticated terror group to carry out an unsophisticated attack. That’s a good way to confuse the situation and shift eyeballs to other suspects. With people flying in from all over the world to run in the marathon, it also doesn’t rule out the possibility of foreign involvement.

Some notes on the timing. Gordon from Michigan, a marathon runner himself, pointed out that the race clock was at 4:09 when the first explosion went off. That’s “top of the bell curve of finishing times,” to quote him. (For the record, Gordon was in D.C. yesterday and is perfectly safe.) Whoever the perpetrator was, he or she knew marathons well, and they seem to have known Boston pretty well, too. And with so many anniversaries – Tax Day, Patriots’ Day, the marathon itself – taking place on April 15, they timed it well enough that there would be an especially high list of possible motivations.

I want to conclude by emphasizing one thing: If you had faith in humanity before the attack, hang on to it. The people who donated blood, ran back in to aid victims and offered their homes as shelter are enough to prove that one attacker isn’t enough to diminish the efforts of thousands of innocents. But by carrying this out at such a massive event, they have not made humanity more immoral – just more afraid.

They’re a-comin’ for your guns! Wait, no . . .

One non-germane (unrelated) amendment to the 2013 budget was one from Sen. Jim Inhofe (R-OK) that would prevent the U.S. from joining the United Nations (UN) Arms Trade Treaty. His explanation:

We’re negotiating a treaty that cedes our authority to have trade agreements with our allies in terms of trading arms. This is probably the last time this year that you’ll be able to vote for your Second Amendment rights.

The type of people who require illicit trade, which is what this treaty is really about, to exercise their Second Amendment rights don’t deserve congressional defense. But with a national assault weapons ban languishing in Congress, I suppose Inhofe decided this would be a good way to keep everyone’s mind on the (second half of the) Second Amendment. Is there anything more fearsome to those who talk about government tyranny unironically than putting “UN” and “weapons” in the same sentence? (Example.)

Opposition to the treaty is based on the idea that it will override constitutional protections for American firearms owners. The latest treaty draft, found in the second link, is only 12 pages, so don’t give me any tl;dr crap. Here are some pertinent passages:

Reaffirming the sovereign right and responsibility of any State to regulate and control transfers of conventional arms that take place exclusively within its territory, pursuant to its own legal or constitutional systems . . .

Taking note of the legitimate trade and use of certain conventional arms, inter alia, for recreational, cultural, historical and sporting activities and lawful ownership where such ownership and use are permitted and protected by law . . .

Non-intervention in matters which are essentially within the domestic jurisdiction of any State . . .

The first two passages are in the treaty’s preamble, describing things UN states are keeping in mind as they draft it. The third is one of the principles with which they “shall act in accordance.” In short, they mean it.

The only people who have to worry about this treaty are people who are exporting and importing conventional weapons (anything not “of mass destruction”) under the radar and for the purposes of international crimes and/or terrorism. Sen. Patrick Leahy’s (D-VT) alternative amendment, which passed by voice vote, stated that the Constitution superseded international treaties and the Second Amendment must not be violated. But the clarification is already there.

Also, the treaty establishes guidelines for international arms trade; the “authority to have” related agreements is intact.

For on-flight Hunger Games re-enactments?

Before sitting down to write this column, I became curious about what a 2.36-inch knife blade looks like. I measured the blade of the smallest paring knife in our kitchen, which happens to have a missing point; it turned out to be roughly 2.6 inches long. That’s still pretty useful if you want to gouge someone in the eye or slit their throat. But I’ll get to my list of possible victims another time. For now, if you want to carry a 2.36 incher on a plane, the Transportation Security Administration (TSA) says you can by April 25. Feel free to celebrate.

The appropriately named TSA head John Pistole defended the decision to remove knives that size or smaller from the TSA’s prohibited items list to the House Homeland Security Committee last week. He had two reasons for this move that bear repeating here; you may commence loud laughter and outraged gasps at your earliest convenience:

. . . removing knives with blades shorter than 2.36 inches from its prohibited items list would allow airport security screeners to focus on searching for explosive devices. . . .

“We’ve had of billions of passengers, approximately 620 million a year, travel in the U.S. with these items permissible and there has not been a single incident involving those in terms of attack on passengers, flight crew, federal air marshals, anybody,” Pistole said.

Let’s focus on the second one for now, because it’s less hilarious. Why would anyone want to carry a knife of any size onto a plane? Are they hoping to slice a lemon for their $4 Coke? Because you can’t take produce with you, either. (True story: I once accidentally carried an apple provided by my grandmother on a flight to Minneapolis, forgetting it was in my purse. I’ve had guilt-ridden nightmares about it ever since. But nobody noticed.) It would only take one passenger with intentions of stabby rip stab stabbing another passenger to make Pistole deeply regret this one.

Back to the first reason. So they want screeners more time to look for explosives. Therefore, knives, along with large pieces of sporting equipment such as golf clubs and hockey sticks – not half as problematic, but very unwieldy – should be the first to go from the prohibited items list. If you are a woman who has ever had to leave your cosmetics behind because of those assholes with the liquid explosives, please say aye. (*chorus of indignant “aye!”*) And don’t even get me started on the medical equipment. That shouldn’t not disgust you.

If you want to defend scanning those things, go ahead; just don’t tell me someone who really, really wants to bring a knife on a plane isn’t also a cause for concern. If the TSA is so dead set on reducing work for their scanners, they couldn’t have gone about it in a more embarrassing and short-sighted way – and their reputation is bad enough already.

The UCMJ should exercise some soul discretion

In most matters to which the government is a party, its three branches – executive, legislative and judicial – operate separately. Such a condition apparently does not exist within the U.S. military, as the Senate Armed Services Committee learned yesterday. In their first hearing on sexual assault in the military since 2004, they found out what it would take to correct flaws within the military court system that might lead to increased justice for assault victims.

Sen. Claire McCaskill (D-MO) and Rep. Jackie Speier (D-CA) have introduced companion bills that would remove the power of the convening authority (see below) in a military trial to change verdicts at the “sole discretion” they currently enjoy. This is in light of a case in which Lieutenant General Craig Franklin dismissed Lieutenant Colonel James Wilkerson’s guilty verdict in a sexual assault case, and reinstated him into the Air Force. Defense Secretary Chuck Hagel has ordered the Secretary of the Air Force to probe Franklin’s decision; he has no legal power to do much more.

According to Franklin, the jury in Wilkerson’s trial failed to prove beyond a reasonable doubt that he had, in fact, groped the civilian physician assistant who accused him of groping her. Wilkerson’s lawyer, for his part, accused the plaintiff of both “imagining” the groping (nut) and deciding to make it up after another colonel who interested her left Wilkerson’s house party with someone else (slut). After arguments like that, are you surprised the jury, at least, found him guilty?

Here’s a selection from the Uniform Code of Military Justice (UCMJ). Look at 60(c)(1) and 60 (c)(3). The convening authority – who selects the judge and members of the panel tasked with determining guilt or innocence and subsequent sentencing – can at will toss out a guilty verdict, or change it so the accused ends up guilty for a lesser included (related) offense. The convening authority, of course, comes from the chain of military command.

Would removing this ability for high-ranking officers to protect one another be the silver bullet for military sexual assault? Absolutely not. But if the responsibilities of investigation and prosecution are given to an independent body, as McCaskill, Speier and others are recommending, it could make victims feel more comfortable reporting assaults. There were 19,000 estimated incidences and only 3,200 reports in 2011; giving that ratio some room to change might also make perpetrators think twice.

That the military judiciary already operates this way is even more shameful than the fact that a movie about military rape lost Best Documentary to a movie about some folk singer. (I don’t care if the actual movie was better; I would have forgiven the Academy for getting political about that.) With such a poor track record on this, why would anyone trust them to prosecute terror suspects?

Can we sue over harm to the concept of warrants?

The decision in Clapper v. Amnesty International did not address the constitutionality of the warrantless wiretapping program . . .

That’s how you know we’re in for a treat, right, kids? A Supreme Court (SCOTUS) case over warrantless wiretapping that doesn’t actually say much about warrantless wiretapping. But before you can lose it, the parties challenging the wiretap program in this case did have serious flaws in their argument, so the ruling to block their lawsuit against the government isn’t entirely surprising. And if it sparks a real challenge to the wiretap, or at least its lack of transparency, it’ll all come out even.

The challenging parties include Amnesty International USA, lawyers with the American Civil Liberties Union (ACLU) and a number of journalists. They’re concerned that their international communications are being intercepted through the wiretap, under whose guidelines one party to a communication must be believed to be (my emphasis) outside the U.S. They argued that this concern was harming them by all but forcing them to make trips overseas to have conversations they would otherwise have over the phone or by e-mail.

Notice that they haven’t actually proven that their communications were being intercepted. SCOTUS ruled 5-4 that this was necessary to let the suit proceed, along with a demonstration that the costs of those overseas trips counted as “harm,” also absent. Amnesty et al. argued that there was no way to prove the existence of any intercepts; the SCOTUS minority agreed that this was reason not to block the suit. However, Justice Samuel Alito wrote that if a terror suspect was charged on the basis of information picked up through wiretapping, the suspect’s lawyer would have a better case against it.

All this in mind, there are a couple of grounds on which someone might sue to strike down the wiretap altogether:

• It constitutes a program of unreasonable searches, unconstitutional under the Fourth Amendment.
• It denies liberty (from said searches) without warrants, unconstitutional under the 14th Amendment.
• The Bush administration’s establishment of this program before bringing it before Congress violates the Necessary and Proper Clause of Article I, section 8, clause 18, which stipulates that Congress shall have the power to make laws needed to execute the foregoing powers of the section, of which “provid[ing] for the common Defence” and “to make Rules for the Government” are two.

Of course, we could skip the lawsuits and have President Obama make good on his early campaign promise to boost government transparency and go in a different direction on counter-terrorism than his predecessor.

Enter The White Paper

By now you’ve either read or heard about The White Paper; its official title is Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qa’ida or an Associated Force, but we’ll just call it The White Paper. In a nutshell, it’s a Department of Justice document that attempts to find constitutional grounds for the killing of Anwar al-Awlaki, an American citizen by birth involved in a variety of al-Qaeda attacks, and any similar “targeted killings” of U.S. citizens in the future. As you can imagine, not everyone is convinced.

Both The White Paper and White House Press Secretary Jay Carney insist that these types of killings, which have many ifs attached – if a violent attack is imminent, if capturing the target is infeasible and if the operation is consistent with the principles of the law of war – is constitutional. You’ll find many citations of “the inherent right to self-defense,” the Authorization for Use of Military Force (AUMF) and other case law. On the other side, you’ll find many citations of the Due Process Clause, which apparently isn’t as important as it used to be.

The AUMF is probably the biggest problem in this entire debate. Congress has exclusive constitutional power to declare war, and they used it to vote, overwhelmingly, to authorize the president “to use all necessary and appropriate force” against al-Qaeda. In doing so, they set themselves up to shirk their duty to check and balance the executive. Any member of Congress who voted in favor of AUMF and intends to speak out against The White Paper will have a lot of egg on their face. (crickets, probably)

Few Americans will miss anyone, even a fellow citizen, who plans attacks on American soil or people as a member of a terror group – especially that terror group. Certainly nobody misses al-Awlaki. But their gut reaction to the target shouldn’t be the priority. The White Paper says itself that it “does not attempt to determine the minimum requirements necessary to render such an operation lawful.” That should be the priority. Make those attempts.

If The White Paper is to be believed, the mere fact of a U.S. citizen’s association with al-Qaeda is grounds for a targeted killing. (See section II, subsection A for their definitions of “imminent” and “feasible”; they’re . . . rather broad.) Nobody worries about that because they sympathize with U.S. citizens with al-Qaeda links. They’re worried about that because of how much more the government could broaden those definitions. And they’re right to worry.

The biggest concern? Now that The White Paper and its lack of minimum standards has been made public, anyone in Pakistan or elsewhere who has rallied against the presence of drones may now be tempted to do more than just rally. The government can either add all those people to the kill list, or finish what they’ve started and establish who shouldn’t fear being taken out by a drone.

Women in combat: Not the end of the Republic

The last time I wrote on the issue of women entering combat positions, it was in response to this column on the death of a Canadian female trooper; columnist Michael Coren’s take can be summed up as “But she was prettyyyyyy!” (Lest anyone believe women are too emotional to handle combat, I suggest you enlist this guy and see what happens.) Since then, thankfully, we’ve seen a few more reasonable criticisms of Defense Secretary Leon Panetta’s decision to allow women on the front lines.

The biggest sticking point, of course, is the effect on physical standards. As anyone who has taken that battery of fitness tests in high-school phys ed knows, females are held to different standards than males. Since Panetta announced his decision, multiple commentators and experts have expressed fears that the standards will be lowered to accommodate women and, perhaps, meet quotas. Pentagon officials have repeatedly said this will not happen.

Remember that front-line combat often requires more skills than pure strength. As recent coverage has noted, women already serving in some front-line positions have been effective helicopter pilots and medics, and certainly intelligence-gatherers when it comes to talking to Middle Eastern women, some of whom will never talk to men. Besides, there are plenty of men who aren’t strong enough to meet combat standards. The key is finding out which individual personnel are best for these roles.

Another attack on Panetta’s decision that is less worthy of engaging than the above one, but much less groan-inducing than Coren’s column, is the charge that it will lead to higher instances of female soldiers being injured, captured and (especially) raped, an issue which I’m pleased to learn people suddenly care about. Of course, the effectiveness of this attack is somewhat diminished when you consider that anyone who enters the military has a higher chance of death. Troops live with fears for their lives and persons every day; women who enter combat will be well aware of these probabilities. Who wouldn’t be?

And finally, that old chestnut of (I’m paraphrasing, but not much) “The ban has worked up until now. Why change?” When did we decide it was silly to change anything about the military? That was the same argument against repealing “Don’t ask, don’t tell,” and that appears to be working out fine on a macro level. If anything, allowing women who are qualified for combat, however few there are, to actually do it will be good for military cohesion.

Until someone at the White House, the Pentagon or Congress names a numerical target for female combat personnel and is willing to adjust standards to have it met, worries about the implications of Panetta’s decision are insufficient. Just follow the example of a military with bigger problems day-to-day than the American one.

There’s no actual drone policy

Want more proof that the concept of governance for its own sake has been dangerously devalued? “Election Spurred a Move to Codify U.S. Drone Policy.” Am I supposed to believe that nobody said in 2009 or earlier, “Hey, maybe we should write some rules for this stuff so national security isn’t imperiled by using them haphazardly”? Because that, my friends, would be a fucking tragedy. But not a wholly unexpected one.

The administration has long insisted that drone strikes are careful and legal, but that hasn’t convinced many inside the U.S. and out. The Defense Department and the CIA are wary of new rules, preferring “latitude” and “flexibility.” The Justice and State Departments disagree; their buzzword is “restraint.” Officials say the rules themselves are on physical paper, carried by hand from office to office. Let’s see WikiLeaks and Anonymous try to figure that out.

I’ll give President Obama credit for paying lip service to “a legal architecture” for drone strikes. That doesn’t excuse his administration’s slowness in setting one up, not to mention the previous administration’s evident failure to bother trying. But some basic guidelines aren’t hard to think up:

• Identification. The target(s) must be a known terrorist or directly involved with a known terrorist entity.
• Imminence. The targets(s) must be planning an imminent attack on American soil, personnel, assets, etc.
• Inclosure. All measures must be taken to ensure that no civilians will be in the path of the strike when it is carried out.
• Integrity. If the target is an American citizen, as has been the case, they must have taken up arms against the U.S. or incited others to do so.
• Irrefutability. All measures must be taken to ensure that there is no reasonable doubt of the above four criteria prior to striking.
• Intent. The government of the country in which the strike is planned must be made aware of the strike, as must civilians within a certain distance of the area. (If Israel can drop leaflets to warn Gazans of attacks, so can the U.S.)

These guidelines wouldn’t solve the legal disputes over drones, but they might do one thing: mitigate the likelihood that terror groups operating in Pakistan, Yemen and elsewhere would receive support from people in strike-affected areas. All these people know is that loud U.S. machines are firing at them. There needs to be more of an effort on the U.S.’s part to prove not only that these people aren’t targets, but that the true ones are putting their safety at risk.

Even then, this wouldn’t eliminate the possibility of civilian casualties or damage to civilian institutions. But dropping the idea that the U.S. is at war with all of al-Qaeda, wherever it is, could eliminate the possibility of a self-fulfilling prophecy.