Category ►►► Military Machinations

July 1, 2008

The New "Fairness" Doctrine

Patterico has been scathing in his denunciation of the Bush administration and the Pentagon for how they conduct the military tribunals. Back in December, he dubbed the tribunals at Guantanamo Bay "Kafkaesque," saying "they just don’t seem fair." He concludes:

But I do know that the procedures in place now just don’t seem fair. If you can’t find out what evidence the Government has against you; if you can’t present your own evidence; if you are arguing to a tribunal that is told to presume that the Government’s position is correct . . . that’s not fair. It runs a real risk of causing us to hold people who are innocent.

There has to be a better way.

Then today, he crows, or perhaps "views with alarm," that a D.C. circus panel threw out the first enemy-combatant classification by the Pentagon of a detainee:

Add this to the Kafkaseque nature of the tribunals process, which has forced detainees to respond to secret evidence, together with the criticism by a former chief prosecutor that the Administration was rigging trials there to ensure convictions, and the picture is not pretty.

So why do I disagree with Patterico, and why do I think he has gone terribly awry? Consider the last line of his earlier post. The real question here is the very one Patterico begs: "There has to be a better way"... to do -- what?

What's all this then?

Those three judges, the "former chief prosecutor" (Air Force Col. Morris Davis), and Patterico all see these Commission hearings as fundamentally judicial. It's not unreasonable to draw that conclusion, since the result is that those found to be unlawful enemy combatants would be held for periods of time up to life -- and could even be executed.

But reasonable does not mean right... and this conclusion is fundamentally wrong: These hearings are not judicial, nor is their primary purpose justice or punishment; they are military hearings to determine if a detainee is dangerous to the United States.

That is why questions of "fairness" are inappropriate. Fairness is a valid, even vital concern in Patterico's line of work as a deputy district attorney. In civilian trials in civilian courts, the most important underlying issue is justice (of which fairness is an essential component). Practically, the most important question litigated is whether the State has proven, beyond a reasonable doubt, by admissible evidence, that the defendant is guilty of the crimes charged.

But military commissions' most important underlying issue is the same as that of every other branch of the military: victory over our enemies. That means safeguarding American citizens and lawful residents and protecting us from international bad guys. Fairness has nothing to do with it.

• Is it "fair" to bomb a factory during wartime, knowing that at least some of those killed may oppose the war and only be working there under duress, or even as slave labor?
• Is it "fair" to imprison a captured enemy soldier for years, even if he is a draftee?
• Is it "fair" to fire upon enemy combatants, even knowing they are using innocent "human shields," who will necessarily be killed as well?

None of these is in any way fair to the innocents (or at least non-guiltys) involved. But in none of these cases is "fairness" the central concern. If any "crime" was committed, it's a war crime; and the prosecution of war crimes is primarily intended to deter our enemies from doing such things in the future, not to bring about abstract justice for acts in the past. For this reason, war-crimes tribunals traditionally grant many fewer "rights" to the accused than are found in civilian trials of ordinary criminals conducted by those same countries.

In the three cases directly above, Patterico would have no difficulty agreeing with me that we cannot invoke abstract "fairness" to refuse to fight in any situation where innocents might be harmed. On the battlefield, nobody except a pacifist absolutist would be so confused; and Patterico is not a lunatic pacifist by any stretch of rhetoric.

But when the military action shifts from the battlefield to a military commission or tribunal, it superficially resembles a courtroom; "counsels" present "evidence" while a (military) "judge" presides. And that is when those who have spent their lifetimes doing yeoman work within the civilian court system, trying to make America a safer and better place, seem to become befuddled. We see this from Patterico to the D.C. Circus to the Supreme Court's Boumediene decision.

It's said that to a carpenter, every problem looks like a nail, and every solution looks like a hammer. To a heart surgeon, every problem looks like a bad coronary artery and every solution looks like a scalpel. And to a lawyer, even many military lawyers, every problem looks like a crime, and every solution looks like a court trial.

Every objection seems to flow from this single, faulty conceptualization of what these commissions are and what they're supposed to do. For example, what about that charge that the commissions are "rigged" against the detainees?

This bloody fight's been rigged!

Col. Davis bases his accusation on three issues: a lack of "openness" at the commission hearings; the use of classified information that neither the detainee nor his counsel is allowed to see (which "could taint the trials in the eyes of international observers"); and that, as the Nation put it in an interview with Davis, "the process has been manipulated by Administration appointees to foreclose the possibility of acquittal."

The piece in that leftist magazine begins thus -- and here is the same misunderstanding, this time flashing in neon letters the size of the Hollywood sign:

Secret evidence. Denial of habeas corpus. Evidence obtained by waterboarding. Indefinite detention. The litany of complaints about the treatment of prisoners at Guantánamo Bay is long, disturbing and by now familiar. Nonetheless, a new wave of shock and criticism greeted the Pentagon's announcement on February 11 that it was charging six Guantánamo detainees, including alleged 9/11 mastermind Khalid Shaikh Mohammed, with war crimes--and seeking the death penalty for all of them.

In the piece, Col. Davis lobs the allegation that Pentagon general counsel William Haynes demanded the tribunals produce nothing but convictions:

When asked if he thought the men at Guantánamo could receive a fair trial, Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes--the man who now oversees the tribunal process for the Defense Department.

"[Haynes] said these trials will be the Nuremberg of our time," recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

"I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions.'"

First, I am rather skeptical that Haynes said exactly this. Was Col. Davis literally transcribing the conversation while it was in progress? Or is this his reconstruction of the conversation days, weeks, or perhaps two and a half years later? Is this exactly what Haynes said, or is this Davis' tendentious confabulation, based upon his appalled reaction to what he thought Haynes meant?

But let's leave this question aside... despite the fact that it cuts to the fundamental "fairness" of the accusation. How can Davis be unaware of the fact that earlier commissions conducted by the same Pentagon, taking place at the same Guantanamo Bay, managed to release hundreds of detainees from custody... including some who went right out and committed terrorist acts?

Finally, I truly question Col. Davis' historical understanding of war-crimes tribunals if he unfavorably compares the "fairness" of the military commission hearings today with the Nuremberg trials after World War II... considering that far fewer accused Nazis were "acquitted" than terrorist suspects have already been freed from Guantanamo, and the accused Nazis in 1945 had far fewer "rights" than the Military Commissions Act of 2006 gave to the detainees in Guantanamo Bay... even before the Boumediene decision.

To me, it sounds as if Davis is repeating at least one absurdist Democratic Party talking point, regardless of how many others he rejects. The viral meme "MCAs are nothing like the fair and just Nuremberg trials" can be "caught" by anyone whose mind is rendered susceptible by overly legalistic thinking.

The allegation that the system is "rigged" against acquittals is silly, because it has already acquitted hundreds; it betrays Davis' conclusion that these hearings just aren't "fair" to the "accused."

“If the law supposes that,” said Mr. Bumble,… “the law is a ass -- a idiot."

In the New York Times article that sparked Patterico's post today, we discover that the D.C. Circuit panel threw out the Pentagon finding against Huzaifa Parhat, an Uighur Moslem from China, because the classified intelligence against him was not as specific and credible as one would demand in a civilian criminal trial:

Pentagon officials have claimed that the Uighurs at Guantánamo were "affiliated" with a Uighur resistance group, the East Turkestan Islamic Movement, and that it, in turn, was "associated" with Al Qaeda and the Taliban.

The ruling released Monday overturned the Pentagon’s finding after a 2004 hearing that Mr. Parhat was an enemy combatant based on that affiliation. He and the 16 other Uighurs were detained after the American invasion of Afghanistan in 2001.

The court said the classified evidence supporting the Pentagon’s claims included assertions that events had "reportedly" occurred and that the connections were "said to" exist, without providing information about the source of such information.

"Those bare facts," the decision said, "cannot sustain the determination that Parhat is an enemy combatant."

But "those bare facts" are all that we ever get from intelligence operations! That is precisely the reason why civilian courts have no business making the determination whether a person detained is truly an enemy combatant... because the standard demanded by a civilian court for a civilian criminal conviction is virtually impossible to meet in the context of terrorists picked up because of intelligence.

(For one major point, because terrorism is so incredibly destructive, we try to grab them before they carry out their schemes... which means, since the detainee didn't actually succeed, that little evidence is available other than supposition.)

Do these judges imagine that before the Marines open fire on a fleeing vehicle, they must have proof beyond a reasonable doubt that the vehicle contains terrorists? Intelligence is always vague, almost never confirmed, and frequently obtained from foreign sources who do not reveal where they, themselves got it; but if they've been reliable in the past, we must assume they're reliable now, until and unless they disappoint us more than one usually expects from any intelligence. You cannot demand trial-level specificity and sourcing from covert intelligence; it's just not going to be available.

What the court derided -- quoting from Lewis Carroll's the Hunting of the Snark and mocking the administration -- is as good as it gets... and that's the very reason why a civilian court is not competent to make any of these decisions, let alone all of them, as the Supreme Court has now declared. It's as absurd as expecting the D.C. Circuit to approve missile targets in Pakistan.

One law professor understands this point; I'm pleasantly surprised the Times bothered to quote anyone on the military's side at all:

Some lawyers said the ruling highlighted the difficulties they saw in civilian judges reviewing Guantánamo cases.

“This case displays the inadequacies of having civilian courts inject themselves into military decision-making,” said Glenn M. Sulmasy, a law professor at the Coast Guard Academy and a national security fellow at Harvard.

I wonder if Mr. Sulmasy has more or less experience with the needs of the military than do the three judges in the D.C. Circuit panel who decided the Parhat decision.

Old King Cole was a tortured soul

In today's post, Patterico also calls attention to the upcoming trial of Abd al-Rahim al-Nashiri, accused of masterminding the bombing of the USS Cole... and the third detainee, along with Khalid Sheikh Mohammed and Abu Zubaydah, who the CIA has said it waterboarded. Patterico notes that Nashiri claims his "confession" was induced by unspecified "torture".

Of course, Nashiri could be fibbing; to paraphrase Charles Bronson in Breakheart Pass, if a man is a thief and murderer, it follows he may be a liar as well. But let's suppose he is telling the truth for once. This point tells us nothing about whether he is or is not a danger: Even if the confession was true, he still might only have given it because of this supposed "torture."

Why do we customarily believe that in civilian trials, coerced confessions cannot be used? Two main reasons:

1. We believe they are of dubious reliability, since the person being tortured might say anything he thinks his torturers want to hear.

Leaving aside the question of whether waterboarding really constitutes "torture" (it certainly forces people to say things they later wish they hadn't), this objection is easily dismissed: If detailed facts came out during the coerced interrogation that were checked and found to be accurate, and if those facts could only be known by the guilty (such as where the body is hidden, in a murder case), then we may conclude the confessor is guilty.

So that leaves only one reason why coerced confessions are never allowed in court:

2. Forcing people to testify against themselves is, again, simply unfair; it violates the Fifth Amendment protection against enforced self-incrimination.

But this second point again depends upon thinking that the tribunal is an attempt to mete out justice to a mere criminal, rather than a way for the military to decide whether the country would be safer if we kept the detainee behind bars or even executed him.

Finally, one more purely legal point (bearing in mind I'm not a lawyer): It's plausible to argue that the USA PATRIOT Act allows these tribunals to used evidence obtained for intelligence purposes in military commission hearings, even if the intel itself was obtained by means that would ordinarily render it inadmissible in a civilian court hearing, absent the intelligence angle.

This is a point which I don't believe has ever been addressed by the Supreme Court (not even in Boumediene).

Thus, if we reject "fairness" as the core value we're trying to uphold in the MCA hearings at Guantanamo Bay, and accept instead that the core value is "victory in the war," then we cannot have a hard and fast prohibition on using coerced testimony or even confessions: Again, we're not trying to punish miscreants so much as (a) protect the country from them, and (b) pour l'encouragement des autres.

An army of lawyers

A maxim of the law is that it's better that a thousand guilty criminals go free than a single innocent man be wrongly convicted. But when we're discussing a thousand guilty terrorists, we have to think a second time. When we released Abdullah Salih al-Ajmi from Gitmo (which was clearly a mistake in hindsight), he went right out and killed thirteen innocent Iraqi civilians in a suicide bombing in Mosul.

So if Ajmi is typical, then a thousand guilty terrorists released could kill 13,000 innocent civilians and wound an additional 40,000. That's 53,000 innocent lives destroyed. Some may still believe that's better than keeping one innocent person in Guantanamo Bay... but that is not so obvious to me.

Many folks reading this will object that, even if it's true that judges and lawyers have an overly legalistic bias, it's likewise true that the Military Commissions Act of 2006 had an overly militaristic bias. But the captivity and treatment of enemy combatants, whether lawful or unlawful, is at the core of any military strategy -- thus it's fundamentally a military issue, where the most important issue is victory.

But with Boumediene, the Court has held that henceforth, all major decisions in the detention of combatants -- not just the strictly limited set of decisions that the MCA left up to the D.C. Circuit, but all decisions without exception -- will ultimately be decided by civilian courts, even lowly district courts, by civilian judges who cannot help seeing the "trials" as exercises in legal justice -- where the most important issue is fairness.

Perhaps this new "fairness" doctrine is all for the best; maybe I stubbornly refuse to see the obvious. But certainly nobody on that side of the aisle at any level, from Justice Anthony Kennedy to Patterico, has endeavored to make the case to me that in dealing with terrorists, fairness should trump victory.

I'm listening, but I hear no argument.

Hatched by Dafydd on this day, July 1, 2008, at the time of 7:55 PM | Comments (10) | TrackBack

June 27, 2008

Could Afghanistan Use a "Surge?"

A new Pentagon report on the lack of progress in training up the Afghan army raises an important question; do we need to implement a counterinsurgency strategy in Afghanistan? Many people glibly suggest just such a strategic change; but it's by no means certain it would work even if we tried it.

The Pentagon report was scathing about the lack of progress of the Afghan army:

The assessment was bluntly pessimistic as it described efforts to train the Army and police.

As of March, it said, just one Army battalion and a headquarters unit could operate independently, while 26 battalions, five brigade headquarters and two corps headquarters units could plan and execute counterinsurgency operations with the support of coalition forces.

In addition, as of the spring, the U.S. had provided only 44 percent of the nearly 2,400 trainers needed for the Afghan Army, and just 39 percent of the mentors for the Afghan police.

Development of the Afghan police is taking longer and has been hindered by "corruption, insufficient U.S. military trainers and advisers, and a lack of unity of effort within the international community," the report noted.

The recent deployment of 1,200 U.S. Marines to serve as trainers for the police has beefed up the totals, but when those troops leave in the fall, the need for 1,400 police mentors will remain.

Secretary of Defense Robert Gates notes that a major motivator of the resurgence of the Taliban has been the steady loss of control of the Pakistan government by President Pervez Musharraf, in favor of the Pakistan Muslim League (N) of Nawaz Sharif, Pakistan's prime minister, who favors negotiating with al-Qaeda and other insurgents, rather than suppressing them, which was Musharraf's policy:

A key to the deterioration there, he said, has been recent efforts by Pakistan to negotiate peace agreement with tribal leaders along the lawless border. Those talks, he said, took the pressure off insurgent groups and "they've therefore been more free to be able to cross the border and create problems for us."

The report concurs, calling the insurgents' safe havens in Pakistan's tribal areas along the border "the greatest challenge to long-term security" in Afghanistan.

So what about developing a COIN strategy for Afghanistan, similar to that which was so successful in Iraq? It may not be as easy to do as to say. For one major problem, the 32,000-troop strong International Security Assistance Force (ISAF) -- the NATO troops in Afghanistan -- currently has the lead for all combat and reconstruction in Afghanistan. The commander of the ISAF is, I believe, currently Gen. David D. McKiernan, USA; but the ISAF reports to Supreme Headquarters Allied Powers Europe, in Belgium.

I don't think Gen. McKiernan's chain of command passes through CENTCOM; but the non-ISAF, non-NATO American forces there, as part of the continuing Operation Enduring Freedom, do report to CENTCOM -- which will mean reporting to Gen. David Petraeus, as soon as Senate Majority Leader Harry "Pinky" Reid (D-Caesar's Palace, 85%) finally gets around to allowing a confirmation vote. The 8,000 members of the OEF forces are responsible for anti-terrorist operations -- which sounds promising -- but also for training the Afghan army, which hasn't gone very well.

(I know it's confusing; just remember that there is a NATO-coalition -- that is led by the United States -- and there is a separate American-coalition; both these coalitions include many other countries.)

The biggest hurdle is that there would an inherent command conflict between the ISAF and OEF in the event of a COIN strategy: If we're really going to beef up the OEF in a significant way and use counterinsurgency strategy, a la Iraq, to destroy the Taliban and al-Qaeda forces, that would completely nullify the transition of combat lead to NATO's ISAF.

The tempo of operations would shift away from NATO and back to the United States; and I guarantee the Europeans would scream bloody, blue murder -- echoed by the Democrats, who, in case you've forgotten in all the excitement, still control Congress and congressional war-funding.

It would doubtless be much easier for Congress to justify a vote to withhold funding in Afghanistan because we're "screwing NATO" -- than to withhold funding in Iraq because we're winning. Bottom line: We need some Democratic Party support... which means that if there is any COIN program, it would have to be primarily led by the NATO-coalition, not the American-coalition.

But I don't know whether the NATO-coalition would agree to a COIN strategy, since that would involve increasing their troop commitments... though we might be able to gain their approval if we supplied virtually all the "surging" troops ourselves; which would probably be better anyway, because we could bring them all from CENTCOM.

But even so, it's not necessarily going to work as well in Afghanistan as it has in Iraq, for a very simple reason: For two major reasons, we are deprived of the deep well of resentment and hatred of the terrorists that benefitted us in Iraq:

• Iraqi Sunni comprised very civilized tribes that had always enjoyed some autonomy, but who had been ruled with an iron fist for two or three years, by the likes of Musab Zarqawi and al-Qaeda in Mesopotamia. That terrorist group committed such gruesome atrocities, wanton savagery, totalitarian religious dictatorship, and crimes against humanity, that many Sunni tribes were only too happy to rise up against them and go to war for their own liberation.

  Gen. Petraeus sent Col. David Kilcullen to many tribes, where the Australian counterinsurgency expert helped them set up "Salvation Councils" to ally with Coalition forces. Without those native counterinsurgents, we might not have won.

• Iraqi Shia were (and are) spiritually led by Grand Ayatollah Ali al-Sistani, who guided them away from Iranian dominance so strongly that Iraq Prime Minister Nouri al-Maliki was finally compelled to go to war against the Shiite terrorists and Iranian proxies... primarily the Mahdi Militia, led by Iranian puppet Muqtada Sadr. Again, without the enmity between Iraq and Iraq, Persia and Arabia, we might not have gained Shiite support... which was critical in making the counterinsurgency work.

Neither of these happy circumstances prevail in Afghanistan: The Taliban and al-Qaeda were kicked out in 2001, so it's been nearly seven years since anyone had to live under that rule. Out of sight, out of mind.

And there really is no bitter rivalry or jealousy between the tribes in the south and east, which span the border bewteen Afghanistan and Pakistan; the Taliban and al-Qaeda are still strong and growing stronger in the latter country, and that is the source of the continued insurgency in Afghanistan. The tribes on both sides the border speak the same languages, believe in the same sect of Islam, and see themselves politically as superceding the artificial border -- which was drawn by the United Kingdom in the 19th century -- in the superstate of "Pashtunistan."

I'm not saying that a counterinsurgency cannot work in Afghanistan, but it's going to look very, very different from the one that was so successful in Iraq. And it almost certainly would have to cover all of "Pashtunistan," including the part that lies in the geographical state of Pakistan. That's a very wobbly tightrope to walk, and I suspect it will have to wait until we have a new president.

Assuming, of course, that the new president is the old coot, not the callow youth.

Hatched by Dafydd on this day, June 27, 2008, at the time of 7:02 PM | Comments (1) | TrackBack

May 26, 2008

All the Views They Spit Into Print

It's a vile word. It combines slander and vilification, the essence of what the Bible calls "bearing false witness." A traducer is a person without a conscience, without a chest; a hollow, soulless spirit. Stitching together the worst segments of a harpy and a demon, traducers are sociopaths who literally feel absolutely nothing for their fellow men and women but contempt. They are unable to conceive of other human beings as persons; lives and reputations are tools to be manipulated for the day's desire.

But it's not quite strong enough to describe the editorial board of the New York Times.

There are lies, damned lies, and the Times. To the editors, a man's good name is a wad of toilet paper to be used once then flushed away. Truth is an alien contagion to be warded off by voodoo chants and stuffed alligators. Accuracy is a speedbump on the slander track, over which the Times SUV smashes at unstoppable speed.

Not sure what I'm talking about? You all know that there are several proposals for a "new G.I. Bill" kicking around D.C.; two are significantly popular within Congress.

The first, supported by Democrats, such as Sen. Jim Webb (D-VA, 85%), whom voters fantasized was a moderate non-partisan when they elected him by a razor's edge over George Allen; this followed yet another Democratic campaign of lies and ad-hominem attacks, which is all they have been able to muster in the way of argument in the seven lean years of political oratory. It's also supported by RINOs like Sen. Chuck Hagel (R-NE, 79%)... a man who, through thick and thin, is always there when he needs you.

This version of the new G.I. Bill gives full benefits -- the same benefits -- to every vet who served at least three years. The net effect of this, of course, is to encourage veterans to leave the service after a mere three years, typically before even rising to the rank of sergeant or petty officer third class. Every institution from the Pentagon to the Congressional Budget Office agrees that it would hurt retention of combat veterans -- in the middle of a war.

The other version is supported by the likes of Republican presidential nominee and Sen. John McCain and by Sens. Lindsey Graham (R-SC, 88%), and Richard Burr (R-NC, 92%)... and also by the President of the United States, Commander in Chief of the armed forces, George W. Bush. This version has two major differences with the other:

• It pays benefits on an increasing scale based upon time in service, so the longer the vet has served before retiring, the more benefits he or she receives. This is far superior to the Webb bill, because it encourages enlisted members to stay in military service longer.

  Non-commissioned officers are the backbone of the American military. We give our NCOs unprecedented command authority, setting us apart from, and making us far more victorious than, the other militaries of the world.

• It allows the veteran to transfer the educational benefits from himself to his spouse or children, thus helping veteran families pay for college eduction for their kids.

With that prolog, here is how the editorial by the New York Times linked above describes, in an unbiased and non-partisan way, the president's and the nominee's rejection of the first G.I. Bill, the one by Sen. Webb:

President Bush opposes a new G.I. Bill of Rights. He worries that if the traditional path to college for service members since World War II is improved and expanded for the post-9/11 generation, too many people will take it.

He is wrong, but at least he is consistent. Having saddled the military with a botched, unwinnable war, having squandered soldiers’ lives and failed them in so many ways, the commander in chief now resists giving the troops a chance at better futures out of uniform. He does this on the ground that the bill is too generous and may discourage re-enlistment, further weakening the military he has done so much to break.

So lavish with other people’s sacrifices, so reckless in pouring the national treasure into the sandy pit of Iraq, Mr. Bush remains as cheap as ever when it comes to helping people at home.

Where on Earth -- or further south -- did the Times get such truculent and absurdist rhetoric? Where did they get the cockamamie idea (whether they believe it or are simply lying for political purpose) to say that Bush and McCain reject the Webb bill because it's "too generous?" What brilliant reporter dredged up a hidden memo, a secret meeting, a cabal of Republican infamy that spouted such a phrase, to justity the New York Times using it as a bludgeon?

Oh, wait; now I remember. Does this sound at all similar?

Barack Obama told veterans Saturday that he can't understand why Republican John McCain opposes legislation that would provide college scholarships to people who have served in the U.S. military.

"Now, let me be clear: No one can dispute John McCain's love for this country or his concern for veterans. But here's what I don't understand. I don't understand why John McCain would side with George Bush and oppose our plan to make college more affordable for our veterans," the Democratic presidential candidate said. "George Bush and John McCain may think our plan is too generous. I could not disagree more."

Or maybe it's from this article, which appeared in an obscure publication that the New York Times may perhaps have missed:

Mr. Obama and Senator Hillary Rodham Clinton of New York, his rival for the Democratic nomination, voted to expand the benefits. Mr. McCain was not present.

“There are some who oppose this benefit, arguing that our men and women in uniform haven’t earned it, that it’s too generous,” Mrs. Clinton said. “I could not disagree more strongly. It’s time we match our words with our actions.”

Thus we now learn that the Times now farms out their editorial pages. With all the journalistic standards and gravitas of a pack of gibbons flinging poo at their rivals, the Times simply parrots Barack Obama's and Hillary Clinton's gross and offensive caricature of the objections of serious critics of the Webb bill. Apparently, Democratic campaign staff were invited to New York to ghostwrite an "editorial" befouling Bush and McCain.

(I suggest the Federal Election Commission investigate whether this editorial constitutes a substantial and unreported in-kind donation to Barack Obama's campaign, possibly violating McCain-Feingold.)

If you're still not convinced of the mendacity here, let's read a little more of the Times' love letter to Obama:

The Senate version was drafted by two Vietnam veterans, Jim Webb, Democrat of Virginia, and Chuck Hagel, Republican of Nebraska. [Ah, so this version is supported by "Vietnam veterans"... unlike the other version, which is only supported by chickenhawks like McCain.] They argue that benefits paid under the existing G.I. Bill have fallen far behind the rising costs of college.

Their bill would pay full tuition and other expenses at a four-year public university for veterans who served in the military for at least three years since 9/11....

Mr. Bush -- and, to his great discredit, Senator John McCain -- have argued against a better G.I. Bill, for the worst reasons. They would prefer that college benefits for service members remain just mediocre enough that people in uniform are more likely to stay put.

What a nice thing to say about Sen. McCain. Of course, liberals would treat him with more respect had he, you know, served his country, as Democrats do.

Lest you think the Times has not thought about the arguments against the bill they support (that is, the one that drains us of our non-coms), here is their unassailable answer:

They [Republicans like McCain] have seized on a prediction by the Congressional Budget Office that new, better benefits would decrease re-enlistments by 16 percent, which sounds ominous if you are trying -- as Mr. Bush and Mr. McCain are -- to defend a never-ending war at a time when extended tours of duty have sapped morale and strained recruiting to the breaking point.

Their reasoning is flawed since the C.B.O. has also predicted that the bill would offset the re-enlistment decline by increasing new recruits -- by 16 percent [imagine a dramatic "ta-dah" playing in the background]. The chance of a real shot at a college education turns out to be as strong a lure as ever. This is good news for our punishingly overburdened volunteer army, which needs all the smart, ambitious strivers it can get. [As opposed to the tired, cynical, doddering NCO hacks the Times wants to boot out.]

So let's see... we lose a bunch of Army Staff Sergeants, Air Force Top sergeants, Navy Petty Officers, and Marine Corps Gunnery Sergeants. But that's okay, because we gain an equal number of buck privates, airman recruits, seaman recruits, and privates.

So what are those ungenerous, veteran-hating Republican macacas whining about? The same number of losers will still be stuk in irak, right? They should instead be grateful the Democrats don't simply ban NCOs all together -- "three stripes, you're out."

The Times editors hasten to add that they support a "larger, sturdier military;" but what is now as obvious as Michael Moore's, ah, fundaments is that liberals, especially those anointed beings who control the elite media, consider the United States military as primarily a massive jobs and welfare program. Its only purpose is to support those illiterate, uneducated, stupid people who didn't study in school. One soldier, one widget is more or less interchangeable with another. And they want to cycle the widgets through the military entitlement complex as quickly as possible, so they can go to college and get "real" jobs.

Like, for example, moving to Chicago to become a "community organizer." I understand that's a career path where you can get to the top really fast.

Hatched by Dafydd on this day, May 26, 2008, at the time of 6:20 PM | Comments (6) | TrackBack

May 22, 2008

Patterico and Gay Soldiers: Strict vs. Rational - Liberty vs. Privilege

Patterico has an interesting post up; I agree with his basic premise -- that pure policy questions should not be decided by the courts but by the democratic branches of government (the legislative and executive branches). But in the course of his otherwise excellent post, he makes, I believe, two fundamental errors: first, mistaking the lucidity of the explanation of a decision for the validity of that decision; and second, applying strict legal reasoning where a broader philosophical reasoning is wanted.

(Some of this is based on suppositions on my part; I'll try to point them out when I notice them.)

Just the FAQs, ma'am

In his post, "Ninth Circuit Issues Deceptively Important Opinion on 'Don't Ask, Don’t Tell'," Patterico slams a panel of three liberal judges on the Ninth Circus for their decision in Margaret Witt, major v. Department of the Air Force, et al -- a case involving the "don't ask, don't tell" policy prohibiting gays from serving openly in the military. And Patterico also berates the Supreme Court's majority opinion in Lawrence v. Texas. He argues that the lack of clarity in the latter created a confusing situation in the former: What level of scrutiny anent gays should courts apply to laws and policies?

This a very important question, as Patterico explains:

The reason this is important is because [sic] the level of “scrutiny” almost always determines the outcome. When courts look at governmental action under a “rational basis” type of scrutiny, it means they’re not making the government work hard to justify its actions. Any conceivable “rational basis” for the government’s action will be enough to justify it.

By contrast, when courts apply “strict scrutiny” to governmental action, they’re essentially walking up and holding a magnifying glass to the government’s decisionmaking process. If the court finds any flaw in the government’s reasoning, however slight, it will strike down the governmental policy.

He then goes on to note that the Court, in its landmark ruling Lawrence v. Texas (majority opinion by Justice Anthony Kennedy) -- which found a fundamental liberty for consenting adults to engage in sexual activity, procreative or nonprocreative, in private (including homosexual activity) -- never properly specified what level of scrutiny to apply to laws and regulations that apply to such sex:

Usually, appellate courts simply state the test they are applying, in a clear way, so that lower courts are easily able to apply the test. This is especially true for the Supreme Court, which must provide guidance for all federal courts in the nation.

But when you’re drunk on judicial arrogance, as Justice Kennedy was in the Lawrence v. Texas decision, the virtue of clarity becomes nothing more than an annoying vexation. The need for clear guidance is petulantly waved aside, as the author of the opinion writes in grand prose. His audience is not the lower-court judges who have to implement his pronouncements. Rather, it is fawning journalists at the New York Times and other elite media outlets.

Thus do the courts find themselves in the predicament of trying to figure out what sort of “scrutiny” the Lawrence v. Texas decision was actually applying. Was it “rational basis” scrutiny? “Strict scrutiny?” Or something in between? Justice Kennedy didn’t bother to say, so the courts are on their own.

One court of appeal has directly ruled on the issue: the Eleventh Circuit, which stated that Lawrence applied “rational basis” scrutiny.

Today, the Ninth Circuit disagrees, saying that some form of heightened scrutiny -- essentially a form a “intermediate scrutiny” -- applies to the Don’t Ask, Don’t Tell policy.

The distinction here would be between a Court declaring that the Texas law prohibiting "sodomy" had "no rational basis," thus was unconstitutional; or alternatively, the Court ruling that whether or not there was a rational basis, the liberty being infringed was so fundamental and vital that the state of Texas had to go farther and show that:

• The law served a compelling governmental interest;
• That it was narrowly tailored to achieve that interest;
• And that it was the least restrictive means for achieving that interest.

Patterico may well be correct on the narrow, legal point that Justice Anthony Kennedy's opinion did not clearly indicate which scrutiny test should be applied. But... "drunk on judicial arrogance?" I cannot believe this attack only targets Kennedy's ability to write a judicial opinion; that would be a rather colossal case of overkill. I can only suppose that Patterico believes the decision itself, striking down "sodomy" laws across the nation, was an example of "judicial arrogance," what we would ordinarily call judicial activism -- that is, legislating from the bench.

Based admittedly on my supposition, I must conclude that Patterico believes there was no "liberty" at issue in Lawrence, no "fundamental right" to have sex that some would call sodomy, and that it was perfectly constitutional (whether or not a good idea) for states to ban it.

I take the contrary position: I believe Lawrence was correctly decided, no matter how good or bad was Justice Anthony Kennedy's legal argument in the opinion. I believe we do have the fundamental right to engage in nonprocreative sex (the usual definition of "sodomy," encompassing far more than gay sex), and that such privacy is a vital liberty issue.

But I completely agree with Patterico that Lawrence should not force judicial decisions in favor of same-sex marriage or striking down the "don't ask, don't tell" policy of the military service, thus judicially forcing the military to allow gays to serve openly. The rest of this post explains why, after the "slither on"...

Agreeable disagreement

Now, let me not make the same mistake that Patterico ascribes to Justice Kennedy; here is exactly where I stand on the underlying issues:

1. I have no argument with Patterico's point that the opinion in Lawrence offered no clarity on which standard of scrutiny to apply; that's a lawyer's question beyond my competence.
2. Likewise, Patterico and I agree that "don't ask, don't tell" is a foolish policy. I believe I'm also in agreement with Patterico (reading between the lines) that the military should simply drop its prohibition against homosexuals serving openly in the military, at all levels and in every MOS for which the individual qualifies. I think the current policy, even under "don't ask, don't tell," has created a terrible potential for blackmail, leading to espionage and sabotage.
3. Patterico and I definitely disagree on same-sex marriage; I believe allowing it strikes a dangerous and potentially deadly blow to Western civilization for reasons I have enunciated many times (most recently, in the reposted Californichusetts). But we definitely agree that whichever way a state decides, the process of decision should be democratic, not judicial (as I noted in Marriage, Money, and Ursus Maritimus, which evidently none of you liked).

4. I have no specific evidence where Patterico stands on laws prohibiting "sodomy," but I imagine (based on extrapolation) that he opposes such laws... but that he believes there is nothing unconstitutional about them; rather, I reckon he believes they should be overturned by legislatures or votes of the people.

   But while I agree with him on the demerits of anti-"sodomy" laws, I dispute the point that they should be constitutional; I believe Lawrence was correctly decided. I'll get to that in a minute.

Where I take issue with Patterico's post is not precisely on point (4) above, though that is the background; where we really part company is that Patterico's post tacitly assumes that a wretched majority opinion in Lawrence (which I cede for purposes of discussion) disproves the validity of the decision itself: A perfectly good decision can be obscured by an incompetent and self-aggrandizing opinion.

I also take issue with another tacit assumption: That if Lawrence v. Texas requires a standard of "strict scrutiny" anent policies such as "don't ask, don't tell," this will automatically force the policy to be overturned.

Scrutinizing "scrutiny"

The second point is the easiest to show; Patterico notes that the plaintiff in the Ninth Circuit case argued that Lawrence v. Texas protects private sexual activity as a "fundamental right," but that the Ninth rejected this position in favor of one Patterico finds barely less sweeping:

Note that the plaintiff

argues that Lawrence effectively . . . establish[ed] a fundamental right to engage in adult consensual sexual acts.

Wow. That argument, if accepted, would grease the ol’ slippery slope up something fierce. To say that any consensual adult sexual act is a “fundamental right” under the Constitution has implications that go waaaaay beyond “Don’t Ask, Don’t Tell.”

The Ninth Circuit doesn’t go that far. Yet. Rather, it takes what sounds like a simple, small step: it decides that the Lawrence court wasn’t applying “rational basis” scrutiny. This is just another step down the slope -- but don’t let its seeming modesty fool you. It’s a big step.

But suppose the court had gone farther and accepted plaintiff's argument. Would that mean that "don't ask, don't tell" would inevitably be struck down?

No, because courts have historically given the military great leeway even with rights everyone agrees are "fundamental"... including the First Amendment rights of freedom of speech and freedom of assembly. The service clearly abridges a servicemember's ostensible freedom of speech; and obviously military service does not grant soldiers complete freedom of assembly: They may be disallowed from leaving the base, they can be sent abroad without their consent, and they can be explicitly ordered not to participate in any political rallies. And they can even be prevented from leaving military service so long as they are still needed. And all this is true even in the post-Vietnam, all-volunteer military.

Regarding the strict-scrutiny standard, national security has historically been a textbook example of a "compelling government need." Courts recognize that armies and navies cannot afford their members the same degree of individuality and liberty allowed civilians, even in a free society. I don't think any federal appellate court ever found that the military draft was unconstitutional, for example; and that actually applied to civilians, not soldiers!

If the military lawyers could persuade the courts that there was any basis rationally related to national defense for preventing gays from serving openly in the Navy, Marines, Army, Air Force, or Coast Guard, then I believe that would pass the "strict scrutiny" test. Thus for purposes of military service, the standards of "strict scrutiny" and "rational basis" wouldn't even be that far apart; I believe the Court would tend to defer to the military leaders, no matter what lower courts held.

Liberty bonds; tyranny severs

In arguing my point (4) above, I will not try to make a legal argument. (I'm not a lawyer, though I sometimes play "sea lawyer" on the internet.) But I don't believe that only attorneys at law are allowed to opine on matters of liberty, nor that their opinion should trump any non-lawyer's opinion.

As I see it, the basic question decided by the Court in Lawrence v. Texas was this: Can government regulate private sex between consenting adults?

This brings up a related, very touchy subject: Is there a fundamental right to privacy implicit within the Constitution? There certainly is no explicit right to privacy; the case Griswold v. Connecticut -- ostensibly about whether a couple could purchase condoms -- held that there was just such a fundamental right to privacy found within (infamous expression alert!) the "penumbras" of other, explicitly protected rights in the Constitution formed by "emanations" from those explicit rights:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.

The language seems pompous, antiquated, and quaint, leading many to conclude it is ridiculous and meaningless. But if you actually trouble to look up the words, you will see that the premise is not only defensible, it's actually quite quotidian.

A "penumbra" is "a surrounding area, a periphery." And an "emanation" is just "something that issues from a source." So all that this much derided and thoughtlessly dismissed sentence means is that cases suggest that explicit rights guaranteed by the Bill of Rights have implicit surrounding areas of consitutional protection, formed by the requirements of the explicit rights themselves: Some explicit rights, the Court held, could not be protected without protecting some similar, nearby, or related right that is not explicitly mentioned.

Your penumbra has an emanation...

Taking it out of the sexual realm, let me give you what seems like a good example to me; if a lawyer reading this post believes this to be a bogus illustration, please let me know. The Second Amendment is (I insist) an individual right of every adult in America, with some exceptions (felons, illegal aliens, children, drunkards). Here is what it says exactly, anachronistic punctuation and all:

(The punctuation and spelling were modernized before the Bill of Rights was ratified.)

Note, however, that it doesn't explicitly protect the right of the people to ammunition. The two words are not generally synonymous; there are many references to "arms and ammunition" and suchlike from the 18th century and earlier. So would those of you who reject the very idea of ancillary, implicit rights connected to explicit rights argue that it was perfectly acceptable for the federal government to prohibit the private possession of ammunition?

I doubt it; it's clear that the "right of the people to keep and bear arms" is meaningless if ammunition can be banned. Protecting the explicit right to keep and bear arms requires protecting the implicit right to keep and load ammunition. The right to ammunition forms part of the "penumbra" surrounding the Second Amendment formed by its "emanation" -- the need for ammunition to make the explicit right to arms meaningful.

Examining the private parts

Here is how the Court in Griswold reasoned its way a "fundamental right to privacy;" there is a good, basic philosophical argument here, regardless of whether it was legally well written:

In NAACP v. Alabama, 357 U.S. 449, 462 , we protected the "freedom to associate and privacy in one's associations," noting that freedom of association was a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid "as entailing the likelihood of a substantial restraint upon the exercise by petitioner's members of their right to freedom of association." Ibid. In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion. In like context, we have protected forms of "association" that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members. NAACP v. Button, 371 U.S. 415, 430 -431. In Schware v. Board of Bar Examiners, 353 U.S. 232 , we held it not permissible to bar a lawyer from practice, because he had once been a member of the Communist Party. The man's "association with that Party" was not shown to be "anything more than a political faith in a political party" (id., at 244) and was not action of a kind proving bad moral character. Id., at 245-246.

Those cases involved more than the "right of assembly" - a right that extends to all irrespective of their race or ideology. De Jonge v. Oregon, 299 U.S. 353 . The right of "association," like the right of belief (Board of Education v. Barnette, 319 U.S. 624 ), is more than the right to attend a meeting; it includes the right to express one's attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means. Association in that context is a form of expression of opinion; and while it is not expressly included in the First Amendment its existence is necessary in making the express guarantees fully meaningful. [381 U.S. 479, 484]

They follow by a list of explicit rights which can only be meaningfully protected by assuming an implicit but nevertheless basic and fundamental right to privacy. You can disagree with the specific examples cited, yet still logically accept the basic premise. I think nearly everybody believes there is a zone of liberty surrounding the individual, inside of which government may not intrude, except under the most extraordinary circumstances:

• How many of you believe that your state or city -- believing that beige is a particularly soothing color -- can constitutionally pass a law requiring the insides of all buildings, whether public, commercial, or residential, be painted the same shade of beige?
• Can government ban red and blue clothing, because the city council or state legislature (or Congress) declares them "gang colors?"
• Can it constitutionally mandate the number of squares of toilet paper individuals must use?
• Can it ban spicy food, even in one's own home, because it might lead to gastric ulcers and cause more health-insurance claims?
• Can it make kissing in public a criminal offense?

Many people do, in fact, believe that all of these are constitutional... nearly all such folk are lawyers. They implicitly accept the premise that any power not expressly forbidden to the Congress or the states is therefore perfectly proper for them to exercise. (A perfect example of being "overlawyered" in one's thinking.)

But fundamental rights long predate the writing of the Constitution; they even predate the existence of lawyers, let alone any specific, lawyer-generated enumeration of such rights. And the rest of us understand that no matter what the Constitution does or does not say, there are certain natural limits to the totalitarian impulses of government at all levels.

We also accept that our understanding of these fundamental rights will change over time: For example, in 1796, there was no national consensus that all human beings had a fundamenal right to liberty; a certain class of human beings, slaves, were denied that right. The right itself may have existed then, but if so, much of the country didn't accept it.

But regardless of what people would have accepted in 1850 or 1900 or even 1950, today in 2008, I assert that the vast majority of the American people accept that individual adults have a fundamental legal right to engage in consensual, non-commercial sex behind closed doors... including sex that will not produce a baby. Even most Americans who believe such non-reproductive sex is morally wrong rarely believe the government has the authority to jug sinners for engaging in it.

That means that the vast majority of Americans believe government has no authority to bar the use of contraceptives, because the decision of how many kids to have is not within the jurisdiction of government; in fact, that's one of China's great crimes against humanity. The right to use or not use contraceptives is part of a larger right of privacy.

Likewise, most Americans now accept that the right to engage in sex that your local city council disapproves of is also falls within the fundamental right to privacy. This includes, via Lawrence v. Texas, the right of homosexuals to engage in what some jurisdictions used to call "sodomy" -- particularly when one points out that "sodomy" can be defined, and has been defined in the past, to include virtually any heterosexual act other than the "missionary position." If the State has the authority to ban "sodomy," then it also has the authority to prohibit "adultery," which means any sex outside marriage... and that, too has frequently been done.

Real Americans do not see their governments as a surrogate parent (or surrogate priest), making every decision for every American; real Americans reject totalitarianism, even majoritarian totalitarianism. We all "draw the line" of individual liberty somewhere; most of us assume that there are zones of liberty not explicitly protected by the Constitution, but in which government should not intrude nonetheless.

Only a wretched handful believe liberty is precisely and exclusively limned by the explicit words of the Constitution, that any power not expressly prohibited is available for government, merely because the Constitution is "silent" on the issue. Philosophically, in our liberty-based culture, all else being equal, uncertainty should be resolved in favor of individual liberty, the states, or the federal Congress -- in that order.

Liberty, security, and sanction

I support the decision of Lawrence v. Texas striking down "sodomy" laws. So why don't I accept that "liberty" should also require same-sex marriage? What is the difference?

The right of privacy primarily protects private acts; but marriage is fundamentally a public act: It used to be called "publishing the banns;" even today, marriages are generally public spectacles where people spend thousands of dollars and invite all their friends, relatives, and distant acquaintances; many times, they even publish a squib in the newspaper.

Marriage is the public, social sanction of a relationship. Since those desiring marriage seek the approval, even applause of society, it makes perfect sense that society (through its democratic institutions) can constitutionally decide what specific types of relationship it's willing to approve. Under that authority, society has by and large decided it will not approve of marriages between three or more people, between adults and those below the age of consent, between people who are too closely related -- or between people of the same gender.

Marriage is certainly not necessary to make meaningful the right of gays to engage in sex with each other, unless one believes that sex, intimacy, and love can only exist inside of marriage. So nothing in Lawrence or Griswold even speaks to same-sex marriage (or polyamorous marriage).

All right... but doesn't a fundamental right to engage in gay sex force the end of "don't ask, don't tell?"

Again, certainly not... no more than a fundamental right to freedom of speech and the right peaceably to assemble force the end of military censorship and discipline. When you join the military, voluntarily or by being drafted, you give up certain rights formerly protected by the Constitution.

That doesn't mean the military must prohibit gays from serving openly, only that it can if the president and/or Congress so desires: National defense trumps individual liberty among military servicemembers, even under a standard of "strict scrutiny."

Necessary suppositories

Finally, I want to caution again that some of the opinions I impute to Patterico are actually suppositions I drew from reading between his lines; and I could be wrong. It has occasionally happened.

Very occasionally.

But even if I misstook his position on some issue, my arguments still stand as directed against the position itself... which presumably someone holds. It's a big country.

Hatched by Dafydd on this day, May 22, 2008, at the time of 7:07 PM | Comments (3) | TrackBack

April 3, 2008

Memo to Japan: You Are Aware There's a War On... Right?

On February 19th, a Japanese Aegis destroyer, JS Atago, equipped with an advanced radar system, collided with a small fishing boat Seitokumaru off the Boso Peninsula in Chiba Prefecture. Tragically, the accident killed a father-and-son pair of fishermen aboard Seitokumaru. Atago was on her way home from Pearl Harbor, having just finished four grueling months of training and testing in Hawaii waters.

It seemed a mere traffic accident, and it had nothing to do with the Aegis system or the radar installation. However, it was the latest in a series of mishaps and scandals that have plagued the Japanese Maritime Self Defense Force (JMSDF -- the Japanese "navy") over the last couple of years. The Minister of Defense egregiously mishandled the collision investigation and public relations, further exposing the deep-seated problems of the ministry itself; and the Japanese press instantly blamed Aegis, demanding to know why a multi-million dollar system designed to intercept missiles in flight didn't somehow make a fishing trawler get out of Atago's way.

The stunned ministry took severe disciplinary action against 88 defense-ministry officials and service members, including Adm. Eiji Yoshikawa, MSDF chief of staff. (This does not include Atago's captain or crew, since the investigation is still underway.) The crew were confined aboard the ship in port, essentially in jail, for over a month; they were subjected to harsh treatment from zealous investigators and scathing criticism from the media. One sailor who'd been on watch the morning of the accident actually attempted to "cut his stomach" -- commit suicide to save his face.

The "mere traffic accident" has metastisized into a full-blown fiasco for the Maritime SDF...

The government concluded that Yoshikawa, who took office in August 2006, should take responsibility for a series of accidents and blunders, including a fire on the destroyer Shirane at Yokosuka base in Kanagawa Prefecture in December 2007 and the leakage of confidential information, including data on the Aegis system....

Kohei Masuda, vice defense minister, will have his pay cut by 10 percent for two months.

Defense Minister Shigeru Ishiba said he will return two months of salary for the minister's post in a self-imposed disciplinary measure.

Year 2007 did not start well for JMSDF. In March, a petty officer second class from Destroyer JS Shirane -- yes, the same ship that later had a huge fire -- was arrested for illegally removing classified Aegis-related information from his ship and giving it to his Chinese wife:

Police confiscated digital storage devices containing the data during a search in January of the home of the 33-year-old petty officer 2nd class in connection with his Chinese wife, who is suspected of violating immigration law. The couple were not identified, and the law the wife was suspected of violating was not specified.

Information on her current status was not provided.

The hard drives and other storage media contained Aegis destroyer radar data and telecommunications frequencies, sources said.

Since the unidentified PO2 did not have authorized access to any secret information, police realized that higher up personnel had to be involved in the leak. A 43 year old lieutenant commander was later arrested as well, and he implicated 34 year old Lt.Com. Sumitaka Matsuuchi.

Note: The linked Sankei Newspaper’s article is in Japanese; this quote comes from the same article from the English-language Yomiuri Newspaper, from which no link is available.

A 34-year-old Maritime Self-Defense Force lieutenant commander was arrested Thursday on suspicion of leaking top-secret information about key functions of MSDF Aegis destroyers.

The Kanagawa prefectural police and the MSDF’s Criminal Investigation Command arrested Sumitaka Matsuuchi, a former member of the MSDF’s vessel development team in Yokosuka, Kanagawa Prefecture, on suspicion of violating the Law Concerning the Protection of Secrets for the Japan-U.S. Mutual Defense Assistance Agreement.

It was the first time for a person to be arrested under the law since its enactment in 1954. The law prohibits the leaking of information about weaponry and warships containing U.S. technology.

According to investigators, Matsuuchi used the SDF internal mail service to send a compact disc holding a computer file of top secret information to one of his colleagues around August 2002, at which time he was working for the vessel development division.

By doing so, he leaked secret material to the 43-year-old lieutenant commander, who was an instructor at the MSDF’s First Service School in Etajima, Hiroshima Prefecture, the investigators said.

Matsuuchi admitted the allegation. He told the investigators: “It’s true I handed it to a lieutenant commander who studied in the United States with me after he asked for it. I knew it was top secret material, but I sent it by the SDF’s internal mail delivery service anyway.”

I want to clarify one interesting point about the age of the unnamed lieutenant commander, because it leads directly into the real problem with the Japanese Maritime SDF: In the Japanese military, members often reach a rank plateau and simply stay there for the rest of their careers. Thus it's not unusual to find a 43 year old lieutenant commander (O-4) who remains at that rank for fifteen years.

Why? Because a central problem for the Japanese military is that neither the government nor the country itself really sees the "Self Defence Force" as a real army or the Maritime SDF as a real navy. Japan has been "allergic" to having a real military ever since the Japanese parliamentary democracy was founded after the post-World War II occupation ended.

2007 ended as it began -- with another blow to the pride of the Maritime SDF: JS Shirane, the same ship from which the second class stole the classified information, caught fire when a sailor brought a defective "unauthorized space heater" aboard:

Japanese MSDF 5200 ton destroyer Shirane scheduled to sail out early morning on December 15, caught fire at about 2220 hours on December 14. The Shirane destroyer can hold three helicopters and this is the first Japanese warship to carry a three-dimensional radar....

This fire cause substantial damage to the ship and inured three sailors.

Last year, I worked in Hawaii with a number of members of the Japanese Self Defense Force (SDF). Right after Japan’s first ballistic-missile defense ship, JS Kongo, successfully completed a live firing event, I talked extensively with the public affair officer from Japan. He told me the success of Kongo was very important because the "series of unfortunate events" surrounding the Aegis program had tarnished the Maritime SDF’s reputation, driving public support to an all time low.

The SDF desperately hoped for the total success of Atago’s Aegis system test events in early 2008... and they were not disappointed. Atago successfully completed the final live firing tests in February, and everyone -- including all the American team members I spoke to -- was ecstatic. Finally, they thought, the Japanese Maritime Self Defense Force will become the pride of the Japanese people!

Then on the way home, Atago crashed into the fishing trawler.

When I first heard that almost 90 military and civilian personnel were being disciplined, I thought the Japanese government had gone into overkill, as usual. But the more I think about it, the more convinced I become that this purge may be just what they need.

The impression I got from working with JMSDF servicemen is mixed:

• On the one hand, they are highly efficient, professional, and eager to learn.
• But on the other hand, they have a certain unseriousness that disturbs me. They seem to think the military is just a jobs program with quirky gamerules.

For a simple example, in the United States Navy, we have a rule that officers and enlisted men must "move up or move out;" if a service member is not promoted after several opportunities, he's pushed out the door (I believe this is also true for the other branches). This keeps a constant circulation of new blood in the service and prevents the military from becoming a dumping ground for useless officers and non-coms who are simply given a "window seat," a Japanese term from the days when nobody was ever fired -- but some employees were sidelined into do-nothing jobs where they couldn't cause any damage.

Don’t get me wrong, the SDF service personnel I interacted with were vigilant about checking visitors IDs and logging all recording media that came in to or went out from the ship. They may think the gamerules are peculiar, but they normally follow them.

But oftentimes they forgot that unclassified and classified media should never be mixed; and I believe it was because they never got the underlying point behind the regulations.

For another example, Japanese sailors train for emergency procedures vigorously, much more than their American counterparts. But the training scenarios are always predetermined and known in advance to all the sailors; they would know the exact day and time of the drill -- which in my opinion defeats the whole point of emergency training.

Just as they treat the military as a jobs program, the SDF is simply not on a “war footing” in any other respect. Nobody seems to take the Self Defense Forces seriously as a real military... and that is a fatal flaw.

China poses a much bigger threat to Japan than to the United States. The Chinese government is quite hostile to Japan, and of course much closer; and that's not even taking into account their other enemy, the Democratic People's Republic of Korea -- or their very intense competitor, the Republic of Korea. Seeing what China is doing to the Tibetans, and remembering all the Japanese civilials who were kidnapped over the years by North Korea, it's astonishing that the Japanese imagine those countries would never attack Japan.

Serviceman with access to highly classified information must start taking their responsibilities seriously; they must understand that the beautiful Chinese girl who is overfriendly may very well be a spy.

This is no April Fool; the Chinese government has one of the most active, world-wide human-intelligence spying program in the world. In fact, Gregg Bergersen, a weapons analyst at the Pentagon, just pled guilty to transferring classified air-defense information to a Chinese businessman, Tai Kuo, whom he thought "only" had connections to Taiwan, but who turned out to be a spy for Red China. Kuo is a naturalized American citizen.

The nonchalant attitude towards security on the part of so many Japanese members of the Self Defense Forces and the defense ministry, and towards basic safety -- such as not using unauthorized electric devices on board and failing ot keep an observant watch on the deck -- are all symptoms of fundamental unseriousness about the global war against caliphism. The entire culture of the SDF needs to be upended and overhauled: The Self Defense Force needs to become real military.

The hostility of Japanese public opinion towards the SDF in Japan is unbelievable. Before any details of the accident become clear, the Japanese elite media had already indicted and convicted the sailors. In such a political environment, it seems impossible to imagine turning the SDF into a real, full-time, professional military; but the fate of Japan as a significant power in the 21st century demands it.

I have no idea if they can finally grow beyond the simplistic "war, what is it good for?" meme they absorbed following the catastrophic defeat in 1945... but if they cannot, I'm afraid they will never be able to maintain their economic hegemony in the Orient. Japan can defend its own prosperity without having to recreate the Greater East Asia Co-Prosperity Sphere.

Hatched by Sachi on this day, April 3, 2008, at the time of 7:04 PM | Comments (2) | TrackBack

January 21, 2008

Petraeus, Shmetraeus; the Real Question Is - Who's Next?

The New York Times carries the vaguely interesting speculation (whic barely even qualifies as news) that top Pentagon brass are trying to decide what to do with Gen. David Petraeus for his next assignment. The choices seem to be:

• Commander of NATO, which would give him a strong say in what we do in Afghanistan, where our combat mission is led by American NATO troops;
• Commander of CENTCOM, which would give him an even stronger say, assuming someone can figure out where to stick Adm. William Fallon. Fallon seems to be doing a bang-up job as CENTCOM commander right now and has said that rumors of his death or imminent retirement are greatly exaggerated.

The idea seems to be for President George W. Bush to give Petraeus an appointment and confirmation before leaving office a year from yesterday. If the administration does not, and if a Democrat wins the presidency, the incoming POTUS will surely do everything he can to sabotage Petraeus' career -- taking petty revenge against him for the crime of rejecting the Pelosi-Reid conclusion that we've already lost the Iraq war... and worse, being proven right!

But if Petraeus can serve a term in a less politically charged job (especially as NATO commander), goes this reasoning, then maybe President Hillary (or President Mike, President Barack, President John, President John, President Mitt, President Fred, or Citoyen Ron) will consider kicking him upstairs to Chairman of the Joint Chiefs of Staff -- a gold watch and a window seat.

I don't know. I don't care. He should stay in Iraq as long as possible, then be moved somewhere he can continue to fight... or perhaps train others to fight. I'm far more interested in the question, who will succeed Petraeus as Commander of Multinational Force - Iraq (MNF-I)?

Here, the Times again channels its beloved anonymous sources:

If General Petraeus is shifted from the post as top Iraq commander, two leading candidates to replace him are Lt. Gen. Stanley A. McChrystal, who is running the classified Special Operations activities in Iraq, and Lt. Gen. Peter W. Chiarelli, a former second-ranking commander in Iraq and Defense Secretary Robert M. Gates’s senior military assistant....

Of the potential successors for General Petraeus, Generals McChrystal and Chiarelli would bring contrasting styles and backgrounds to the fight. General McChrystal has spent much of his career in the Special Operations forces. He commands those forces in Iraq, which have conducted raids against Al Qaeda in Mesopotamia, the mainly Iraqi group that American intelligence says has foreign leadership, and against Shiite extremists, including cells believed to be backed by Iran....

General McChrystal, a 53-year-old West Point graduate, also commanded the 75th Ranger Regiment and served tours in Saudi Arabia during the Persian Gulf war in 1991 and in Afghanistan as chief of staff of the military operation there in 2001 and 2002....

General Chiarelli’s strengths rest heavily on his reputation as one of the most outspoken proponents of a counterinsurgency strategy that gives equal or greater weight to social and economic actions aimed at undermining the enemy as it does to force of arms. General Chiarelli, 57, has served two tours in Iraq, first as head of the First Calvary Division, where he commanded 38,000 troops in securing and rebuilding Baghdad, and later as the second-ranking American officer in Iraq before becoming the senior military aide to Mr. Gates.

In a 2007 essay in Military Review, he wrote: “Unless and until there is a significant reorganization of the U.S. government interagency capabilities, the military is going to be the nation’s instrument of choice in nation-building. We need to accept that reality instead of resisting it, as we have for much of my career.”

There are times in a nation's life when its future lies in the balance, and it is within the power of men to turn the tide of history in one direction -- or the other. In this case, the choice of a successor for Gen. Petraeus appears to leave us with two stark directions:

• If McChrystal is selected, then we have turned towards a policy of clandestine warfare whose only function is to destroy the enemy's will and ability to fight against our interests; this, to my mind, is to return to the cold war strategy of yesteryear, though against a different foe.
• But if Chiarelli is chosen instead, we will have turned instead towards a policy of undermining the enemy by denying him the fertile breeding ground of political and legal chaos, resentment, fanaticism, hopelessness, and futility that attends failed states. We will be firmly on the path of nation-building.

I believe the latter would infuriate most conservatives... and I believe it essential that we follow that path nevertheless.

I harken back to the seminal book the Pentagon's New Map, by Thomas P.M. Barnett. Barnett's genius was to recognize that virtually all threats to the United States and our interests came from a narrow swath cut through the middle of the map. The Pentagon had long called this jagged cancer in the world body the "arc of instability;" but Barnett realized it was something more profound: It largely comprises those nations that stubbornly refuses to integrate with the rest of the world's politics, economics, and communications net.

Not that the Non-Integrating Gap (as Barnett calls it) is bereft of political organization; factions are constantly maneuvering to bind all the world's disgruntled postal workers into a single, globe-girdling caliphate... that is, groups like al-Qaeda and countries like Iran engage in the ceaseless struggle of nation-building; but the "nation" they're trying to build is one that offers neither friendship nor a place at the table for us.

Turning to our Special Forces, not simply as tools but as the sharp end of our foreign policy, means abandoning the nation-building field to militant Islamism. You can't beat something with nothing: AQ and the mad mullahs offer something: stability under their rule. If we offer nothing but dark-of-night strikes on people, places, or things that piss us off, then we can never win this war.

Rather, it's absolutely essential that we offer a creative, constructive plan to drain the fever swamps that breed bin Ladens and Mezba-Yazdis and build something functioning in its place; otherwise, we may as well resign ourselves to a generational, existential war that we jolly well may lose.

We cannot simply frighten hirabis into quiessence by clandestine ops and air strikes. We're talking about people for whom, as Cal Thomas put it, "death is a promotion." If hirabis eagerly look forward to dying in order to kill us, how do we "deter" them? Besides, they're not even rational actors, and there is no central caliphate command that can surrender to us.

Gen. Petraeus succeeded because instead of just more killing, he gave the Iraqis a "tomorrow." After tearing down the insurgency, he built something better in its place. He protected the civilian population, helped strengthen the rule of law in Iraq, coordinated the "rebuilding" of that shattered state, made military service a respected career choice for Iraqis for the first time since the Baath Party took over, and in general, spread hope that out of the ashes of Saddam's putative empire, Iraqis could grow the green shoots of normalcy.

We need to follow up with another commander who has the same far-reaching worldview as David Petraeus... not just another Special-Ops marauder who can destroy but cannot build.

Hatched by Dafydd on this day, January 21, 2008, at the time of 7:07 AM | Comments (8) | TrackBack

January 9, 2008

Sneak and Peek

[After a scant two and a half years of persuasion (the strappado was found most efficacious), we have finally prevailed upon our older half to begin contributing to Big Lizards. What follows is the first lizardly blogpost by Brad Linaweaver, famous in three counties (and wanted in four) for his efforts to shine a light on Der Krapp of low-budget movies; for his bootless quest to convince us that our nights are lit by a Moon of Ice; for his unrelenting attacks on the hated neocons in Post-Nationalism; for a tetralogy of Doomed books he co-wrote with some other jerk; and for putting the "tine" back in "libertarian." Without further vamping...]

Although I started out supporting the Iraq war and turned against it in 2006, I have never turned against the thin red line of heroes without whom America is doomed. As Dafydd knows, my criticisms of the Iraq policy are based on Old Right libertarian analysis. But that doesn't prevent me from honoring the achievement of General Petraeus in what came to be known as the surge. The General was given a specific military task to perform which he did splendidly. When Moveon.org decided to make fun of this officer with childish attacks on his name and an inability to separate short term military success from long term political hopes, the dumbass American Left hurt their own anti-war effort. Incredible!

This foolish attitude permeates the current films on Iraq. Talk radio and Fox News fail to understand the real problem. These films are not so much anti-Bush or pro-terrorist as they are actually anti-soldier. We are discussing the absolute worst heritage of the American New Left.

Today's Right does not fight this problem to my satisfaction, because they are too busy defending the President or criticizing the enemy. Our culture is in deep nonsense if we condemn those who volunteer to do military service in this dangerous world, or any other dangerous world we might inhabit. We will not have to live under Bush forever. The current enemy is not eternal, believe it or not. But soldiers will always be needed in any conceivable real world.

I'm not going to be a regular contributor to Big Lizards, but I've been reading it all these years, and I'd like to be an irregular contributor; so let me start off 2008 by wishing everyone a Happy New Year and honoring Sachi in her current service to our country.

[Nota bene: Brad is well aware of this; but just in case some readers are not, I hasten to point out that Sachi is a civilian employee of the United States Navy; she is often found asea -- I mean that literally, not psychologically! -- testing freedom's most advanced weaponry. -- the Mgt.]

Hatched by Brad on this day, January 9, 2008, at the time of 4:52 PM | Comments (3) | TrackBack

December 20, 2007

Today's Huckalunacy: Back to the Future? No, Forward to the Past!

Some evangelicals, such as Lee Harris at TCS (Technology, Commerce, Society) Daily, passionately believe that conservatives (and even non-conservatives such as myself) who say bad things about Mike Huckabee's campaign for the presidency, are simply haters who despise religious people. We spend our time nitpicking every word that Huckabee utters, find absurd conspiracies (such as the "floating cross" in his Christmas TV ad that was actually a reflection off his bookshelves), and even fabricate supposed faux pas out of thin air. We are the polar opposites of those believers who see Jesus in a tortilla and the Virgin Mary in a rock formation.

Not so! In fact, I knew absolutely nothing about Huckabee until I began to hear his own words. I have assumed from the git go that he is no more or less religious than that other evangelical, born-again Christian who currently occupies 1600 Pennsylvania Ave. And everything I have attacked about Huckabee's campaign has been based upon his own words, either spoken, or in the case of his Foreign Affairs article on his deep, surethoughted foreign policy, written after careful pondering and the hiring of a skillful ghostwriter... thus all, one presumes, the considered position of Gov. Mike Huckabee himself.

So I feel no guilt for bringing to your eyes what I just heard with my own ears, on just about the most friendly venue Huckabee can possibly get: the Michael Medved show, a one-on-one conversation with a pal who has pulled out all the stops to turn his show into a virtual daily campaign spot for Gov. Huckabee.

Today, Medved began by asking Huckabee about the section of his article where he says he wants to build up the military much more rapidly than President Bush is doing. As a reminder, this is what Huckabee wrote, or at least put his name to; I include annotations from myself:

The Bush administration plans to increase the size of the U.S. Army and the Marine Corps by about 92,000 troops over the next five years. We can and must do this in two to three years. [Considering that the president has just barely met his own expansion rate, how exactly does Huckabee plan to double it? Care to tell us?] I recognize the challenges of increasing our enlistments without lowering standards and of expanding training facilities and personnel, and that is one of the reasons why we must increase our military budget. [How would increasing our DoD budget cause recruits to magically appear -- and to magically get 4-5 years of training in 2-3 years?] Right now, we spend about 3.9 percent of our GDP on defense, compared with about six percent in 1986, under President Ronald Reagan. [At the peak of the Cold War.] We need to return to that six percent level. [So he wants to add another $240 billion per year to the DoD budget... if he has a plan for getting Congress to vote this -- without a staggering tax increase -- does he care to share?] And we must stop using active-duty forces for nation building and return to our policy of using other government agencies to build schools, hospitals, roads, sewage treatment plants, water filtration systems, electrical facilities, and legal and banking systems. [That would be a great idea, if we could recreate the Foreign Office of the British Empire; but when has America done such a thing in the middle of a war? The Marshall Plan came after Germany was utterly razed.] We must marshal the goodwill, ingenuity, and power of our governmental and nongovernmental organizations in coordinating and implementing these essential nonmilitary functions.

If I ever have to undertake a large invasion, I will follow the Powell Doctrine and use overwhelming force. [A force that took months and months to settle in the friendly country of Kuwait -- which had just been invaded by Iraq, thus was willing to allow us to do so. Which country in the Middle East would have been willing to make itself a target over a six-month period prior to launching our own invasion of Iraq?] The notion of an occupation with a "light footprint," which was our model for Iraq, is a contradiction in terms. [Oddly, though, it seemed to work -- as even Gov. Huckabee admits a couple of sentences later.] Liberating a country and occupying it are two different missions. Our invasion of Iraq went well militarily, but the occupation has destroyed the country politically, economically, and socially. [Destroyed it? It appears to be doing significantly better by many measures than it was under Saddam Hussein.] In the former Yugoslavia, we sent 20 peacekeeping soldiers for every thousand civilians. [And say, that's worked out well, hasn't it!] In Iraq, an equivalent ratio would have meant sending a force of 450,000 U.S. troops. [Great leaping horny toads. And where were we to get the extra 200,000+ troops? Can Huckabee the Great conjure 20 divisions out of his hat?] Unlike President George W. Bush, who marginalized General Eric Shinseki, the former army chief of staff, when he recommended sending several hundred thousand troops to Iraq, I would have met with Shinseki privately and carefully weighed his advice. [Before or after he publicly smeared you with his "advice" at a Congressional hearing?] Our generals must be independent advisers, always free to speak without fear of retribution or dismissal. [Where "our generals" includes Eric Shinseki, but not, evidently, Tommy Franks.]

Look at that -- lots of attacks on Huckabee's ideas, yet not a single reference to "knuckle-dragging evanvgelicals" or "protofascist Christian theocrats!"

But Gov. Huckabee's military naïveté is perfectly encapsulated by a pithy, sententious aphorism he just delivered on the show, which is what spurred me to write this post. Here is what he said -- transcript from my own memory (but as you'll see, it would be hard to get this wrong):

Donald Rumsfeld famously said, "You don't go to war with the Army you'd like; you go to war with the Army you have." But I say, you don't go to war with the Army you have... you go to war with the Army you need. And you don't go to war until you have the Army you need!

(Actually, what Rumsfeld said was "As you know, you go to war with the Army you have. They’re not the Army you might want or wish to have at a later time." But Huckabee's paraphrase is near enough to the meaning.)

Think about that for a moment. How many things are wrong with that sentiment?

1. How do you calculate "the Army you need?"

   Huckabee would use the Powell Doctrine -- where we essentially refight World War II in every military conflict we undertake. The Gulf War was a classic force-on-force confrontation not that different from Patton's North Africa campaign or the Battle of the Bulge. But wars in the future will not much resemble those of the 20th century; and if we're still trying to fight campaigns against agile, assymetrical insurgents with the bigfooted approach of a Colin Powell -- well, look at our Iraq tactics of 2005-2006 and how effective they were.

   And for how many years could we have supported that size of a force in Iraq, by the way?

2. How long do you wait to go to war, trying to raise the Army you think you need under the Powell Doctrine?

   When Colin Powell fought the Gulf War, he had the advantage of the Reagan Army build-up already under his belt. I understand that Huckabee wants to build up our armed forces; but he's still only talking about another 92,000 troops -- in three years. But he now says we should have used 450,000 soldiers in Iraq, which is more than 200,000 more than we used. So should we have waited six years to attack Iraq?

   What kind of WMD would Saddam Hussein have had by now, had we done nothing for the last six years?

3. Where exactly would Huckabee have staged an Allied Expeditionary Force of near half a million? Turkey? Kuwait? Iran? Has the governor even thought this through? Which Moslem country was going to allow us to build up such a massive force of crusading Christians on its territory, in the era of Osama bin Laden and al-Qaeda?

4. Perhaps Huckabee is covertly saying he wouldn't have invaded Iraq at all; that like President Clinton, he would have been content with occasional bombing runs to "keep Saddam Hussein in his box." And when the sanctions regime collapsed under the weight of the UN's Oil for Fraud bribery scheme, we would have grimly watched -- while building our mighty, Cold-War sized Army -- as Hussein rebuilt his entire arsenal of chemical and biological weaponry.

   (Which, by the way, he might have used against neighboring civilian populations or even his own people, rather than against our soldiers... and the civilian death toll could have been much, much higher... even as high as the ludicrous Lancet guesstimate of 655,000 deaths, or the even more risible Opinion Research claim of 1.2 million.)

   If that is what Huckabee is saying, I wish he would just straightforwardly make that case, so we could confront his arguments... instead of advocating policies that would force us down that road, willy nilly, in future.

5. And what if our goal to add another 20-30 divisions were delayed indefinitely by a Congress unwilling to increase the military budget by 65%? How long do we wait before going to war... not just in Iraq, but anywhere?

   Years? Decades? Never? But even Huckabee admits that "our invasion of Iraq went well militarily."

   It seems he would preferentially never invade anywhere at all if he couldn't get enough troops to do it more or less like Operation Overlord on D-Day. This is like the king who had the largest army in Europe -- but would never fight for fear of "breaking" it.

Pace, Lee Harris, but this is why so many Republicans don't think much of "President" Mike Huckabee. Those of us who are not captive to the identity-politics of evangelism realize that electing yet another naïve Arkansas governor with no foreign policy experience to the White House is probably a bad idea during an existential war against global hirabah. Heck, the first was bad enough during the American vacation from history!

Hatched by Dafydd on this day, December 20, 2007, at the time of 1:37 PM | Comments (17) | TrackBack

December 3, 2007

Japanese Ship Sails Dangerous Waters

Recently, I had the opportunity to talk to a naval officer in the Japanese Maritime Self Defence Force (JMSDF). The conversation turned to the Japanese role on the war on global hirabah, as Dafydd calls it (the global war on terrorism, GWOT, as everyone else calls it).

You might not know that under Japan's pacifist constitution, the JMSDF is not legally allowed to engage in any aggressive war, regardless of its merits. However, as our ally, they are allowed (and obligated) to help our war effort in a limited, non-violent capacity. .. which they used to do by refueling American naval ships in the Indian Ocean, among other tasks.

But this effort was halted at the insistance of the opposition parties in the Japanese Diet (parliament); by refusing to support the anti-terrorism bill that fostered such cooperation, the opposition effectively made sure it would expire:

Japan's government ordered its ships supporting U.S.-led forces in Afghanistan to return home Thursday, after opposition lawmakers refused to support an extension of the mission, saying it violated the country's pacifist constitution....

It was an embarrassing retreat for Japan's new Prime Minister Yasuo Fukuda, who was a strong advocate of the six-year mission and had vowed to pass legislation that would let Japan take on at least a more limited role in fighting terrorism in the region.

The order also reflected the growing power of Japan's main opposition party, which made significant gains in elections in July and is pushing to scale back the country's role in international peacekeeping efforts that involve military operations.

Many Japanese do not understand the urgent need to protect their own country. They think the GWOT is something Americans are doing which does not affect Japan at all. Some members of the Diet argue that cooperating with the US will unnecessary endanger Japan; and the Japanese "mainstream media" openly criticize the JMSDF for becoming almost a part of the United States Navy.

But the fact is that Japanese commercial ships are routinely attacked on the high seas by terrorists and pirates. Yes, pirates -- in 2007. And we're not talking Captain Jack Sparrow here: A Japanese blogger (probably female, but bloggers in Japan rarely have "about me" pages on their blogs) called Usagi ni Kaze (兎に風) reminds us of an incident that occurred three years ago. The link is to an English translation; I have left it mostly uncorrected:

April 24, 2004. British Navy assigned to Persian Gulf in part of multinational forces noticed dubious 3 high-speed boat approaching to the Japanese tanker ”Takasuzu” that was piered to the oil-loading port near Basra. Apparently 3 small boats were the self-exploding terrorist attacking the tanker.

The British Norfolk operation log reported that oil-loading port terminal became a target of terrorists. One of the high-speed boats exploded about several hundred-meters off from Takasuzu tanker. The bullets were biting into body of the Tanker making a big hole, and iron-wraught door blew apart. Unfortunately 2 US Marine Corps and and 1 Coast Guard died. Terror was blocked but 3 lost lives.

I think she (or he) means the terrorists were shooting at the tanker before setting off the explosives on the small boat.

My Japanese officer acquaintance reports that Japanese combat ships are not allowed to patrol the area, not even to protect Japanese shipping. Even if a naval vessel happened to have been there, it's not likely they could have done much, because of their overly restrictive rules of engagement.

"Even if we are attacked, we can only fight back with the equivalent power," my acquaintance said. "That means if the terrorists use pistols, we cannot shoot back at them with machine guns. What happens if a boat filled with explosives approaches? Which weapon is the Japanese destroyer allowed to use? Who knows?" He sounded quite frustrated.

Usai ni Kaze and other Japanese bloggers point to this much more recent attack on a Japanese ship to show that the situation is not improving:

A Japanese chemical tanker with 23 Korean, Filipino and Myanmar crew on board has been hijacked off the coast of northern Somalia, a piracy watchdog and officials said Monday. The vessel, believed to be carrying oil products, sent out a distress message on Sunday which was picked up by a rescue centre in Norway and relayed to the International Maritime Bureau's (IMB) Piracy Reporting Centre here. "We tried to establish contact with the ship but we failed to get any response, so we than contacted coalition warships in the area," IMB spokesman Noel Choong told AFP. The coalition naval forces informed the IMB that the ship then entered Somali territorial waters, meaning no rescue could be initiated, he said.

Acccording to CNN Japan, two American destroyers, the Arleigh Burke and the Porter, chased after the pirates. As several Japanese bloggers have pointed out, the Japanese media barely even reported this attack; they're so quiet that the details of the attack are very sketchy.

The Somalian ocean is notoriously dangerous due to rampant piracy; it's the Tortuga of the twenty-first century. Last March, two U.S. Navy warships, the cruiser Cape St. George and the destroyer Gonzalez, exchanged gunfire with pirates off the coast of Somalia:

The battle started after the USS Cape St. George and USS Gonzalez, which were patrolling as part of a Dutch-led task force, spotted a 30-foot fishing boat towing smaller skiffs and prepared to board and inspect the vessels.

The suspected pirates were holding what appeared to be rocket-propelled grenade launchers, the navy said. When the suspects began shooting, naval gunners returned fire with mounted machine guns, killing one man and igniting a fire on the vessel.

(I have some personal knowledge of this incident; a current co-worker of mine (American) was aboard the Gonzalez during the firefight.)

The reason Japanese media is silent about these incidents is that they want to play down the real danger Japanese commercial ships face on the open ocean. They know that if Japanese realized how dangerous maritime activity had become, they would demand that the "Japanese Maritime Self Defence Force" become an actual blue-water navy... which would require the constitution be changed; Japan is an island nation that lives by the sea trade, and Japanese know how vital that is to their own livelihood.

For further evidence of Japan's need for a real navy, and the weakness caused by its lack, see also our series about South Korea, Japan, and the island of Takeshima:

• A Rock And a Hard Peace
• No Samurai Spirit Here!
• Wanted: Real Samurai!

Some concerned Japanese bloggers are very frustrated by the fact that the Japanese government, by law, currently keeps its ships defenseless against terrorists and pirates. "Don't forget," Usagi ni Kaze writes in another post, "three Americans have lost their lives protecting our ship." She (he) thinks it's disgraceful that Japanese purposely allowed the anti-terrorist resolution to lapse, thus forcing Japan to cease protecting the freedom of the seas -- or even its own shipping -- while still giving "plausible deniability" to ministers and members of the Diet who don't want to be seen as endangering Japanese merchant vessels.

Today's AP story addresses the growing problems in the Gulf of Aden and the Indian Ocean off the coast of Somalia, the follow up to the seized Japanese tanker incident:

The U.S.-led coalition working to secure sea lanes beset by pirates believe skiffs like the ones used in the attack on the Japanese ship must have come from elusive "mother ships...." [They mean a larger ship that launches the small skiffs and other boats that carry out the actual attack; the larger ship would be the "base" which must be destroyed to stop the pirates or terrorists.]

The International Maritime Bureau has recorded 31 attacks off Somalia this year but believe many more go unreported.

The 31 includes the seizure a month ago of a Japanese tanker carrying as much as 40,000 tons of highly explosive benzene in the Gulf of Aden.

Initially, American intelligence agents worried terrorists from Somalia's Islamic extremist insurgency could be involved and might try to crash the boat into an offshore oil platform or use it as a gigantic bomb in a Middle Eastern port.

When the Japanese vessel was towed back into Somali waters and ransom demanded, the coalition was relieved to realize it was just another pirate attack.

The more recent attack on a separate Japanese vessel occurred some 85 nautical miles from Somalia in the busy lanes used by boats entering the Suez Canal -- too far for the two small boats carrying pirates to have come from shore. Some attacks are even farther from land, as much as 250 nautical miles, Hasham said.

The pirates boarded the Japanese vessel before their skiffs were destroyed and remain aboard. The U.S. Navy has in the past persuaded pirates to abandon ships they have boarded and still hoped to do so in the case of the Japanese vessel -- though that might be complicated now that the pirates no longer have skiffs on which to leave.

No warship has located a mother ship yet, although that could be due to the continuos radio chatter they put out to warn pirates that they are patrolling the area in an effort to deter attacks. However, numerous ship captains have reported seeing the bigger pirate vessels.

Thanks to blogs and other media outlets, the Japanese people are slowly waking up. I am hopeful that the resolution will be re-approved, and that refueling in the Indian Ocean will resume; just as Democrats here in America will be forced, in the end, to approve funding for the Iraq war without an attached date for America to surrender to the terrorists. In America, sanity usually prevails; I am not so sure about Japan, though.

In any event, the pace at whic