Washington Post Meets Soldiers' Justice

Twelve days ago, Peter Singer broke the story here, that private military contractors were going to be subject to the same laws as soldiers. Since then, big media outlets from the Boston Globe to the Financial Times have picked up on Singer's scoop. Today, it's the Washington Post's turn. The paper puts the story on the front page.

"Right now, you have two different standards for people doing the same job," said Sen. Lindsey O. Graham (R-S.C.), who pushed the provision. "This will bring uniformity to the commander's ability to control the behavior of people representing our country."

Graham, an Air Force Reserve lawyer, said the change will help morale in the field. "If the troops see someone getting away with something that hurts the overall mission, that is a morale buster," he said.

Under military law, known as the Uniform Code of Military Justice, commanders have wide latitude in deciding who should be prosecuted. Crimes include many that have parallels in civilian courts -- murder and rape, for instance -- as well as many that don't, such as disobeying an order, fraternization and adultery.

Legal experts say that latitude is one reason why attempting to hold civilians to the same standards as U.S. troops could be a messy process. It is also likely to raise constitutional challenges: Civilians prosecuted in military court don't receive a grand jury hearing and are ultimately tried by members of the military, rather than by a jury of their peers...

To try to solve the problem, Rep. David E. Price (D-N.C.) introduced legislation last week that he said would strengthen MEJA [the Military Extraterritorial Jurisdiction Act, which supposedly expand federal prosecutors' authority to foreign battlefields], an option he considers superior to using military law. "Military law is not appropriate for civilians," Price said. "The constitutional questions just confuse the issue."

The New York Times also gives our lil' site a shout-out over the scoop, in the "What's Online" column.

Contractors Squirm Under Soldiers' Justice?

The Boston Globe and Defense News have picked up on Peter Singer's scoop -- that military contractors are now going to be subject to soldiers' justice.

Neither the Globe nor Defense News could find any big defense contractor to comment on the five-word change to the law, spearheaded by Senator Lindsey Graham, a South Carolina Republican and former JAG. But they've caught the legal and private military interest groups squirming.

Stan Soloway, president of the Professional Services Council, an organization that represents government contractors, tells Defense News that "one result [of the rule change] may be that contractors now can be punished for actions not ordinarily prosecutable under U.S. law."

The UCMJ’s "behavioral requirements are very different and potentially in conflict with contract law and criminal law," Soloway said...

Civilian contractors now might be punished for disrespecting an officer, disregarding an order or committing adultery — actions that are not prosecutable under U.S. law, Soloway said.

"If a general or colonel directs a contractor or government civilian to do something that is outside terms of contract, under U.S. procurement law, the contractor does not do it without authority from the contracting officer," Soloway said. But under the UCMJ, "that might be failure to follow an order."

"I think there should have been some kind of hearing before Congress passed this measure," Eugene R. Fidell, president of the National Institute of Military Justice, tells the Globe.

"Ultimately, if this power is used, it will create a substantial issue that would likely reach the Supreme Court, and it will put us at odds with contemporary international standards."

Fidell said that US courts have a history of throwing out convictions of civilians who were tried in military courts, including the 1957 case of a wife who killed her husband on a military base.

"There was a period of decades that you could have crimes by US persons overseas that could never be punished," he said.

Hopefully, that will start to change.

Milblogger Clamp Down Blows Up (Updated)

For the last couple of weeks, Defense Tech has been looking into the increasingly hostile atmosphere that soldier- journalists -- milbloggers -- have been facing. Now, a bunch of bigger outlets have picked up on the story -- and advanced it several steps.

Stars & Stripes:

The [Army's] August order [about blogs] specifically states that soldiers may not create or update their blogs during duty hours, and the sites must not 'contain information on military activities that is not available to the general public.'

That includes 'comments on daily military activities and operations, unit morale, results of operations, status of equipment, and other information that may be beneficial to adversaries.'

If soldiers are found violating those rules, both the servicemembers and their commanding officers are notified... leadership can decide what punishment, if any, the soldiers should face...

Noah Shachtman, editor of noahshachtman.com, said... "The fact that soldiers want to write about their experiences is something that should be embraced by the Army... They’re not looking to bad-mouth the military. They’re looking to talk proudly about their experiences."

AP:

"We are not a law enforcement or intelligence agency. Nor are we political correctness enforcers," Lt. Col. Stephen Warnock, [head of the Virginia National Guard "Big Brother" website-monitoring unit] said. "We are simply trying to identify harmful Internet content and make the authors aware of the possible misuse of the information by groups who may want to damage United States interests."

Some bloggers say the guidelines are too ambiguous - a sentiment that has led others to pre-emptively shut down or alter their blogs.

"It's impossible to determine when something crosses the line from not a violation to a violation. It's like trying to define what pornography is or bad taste in music," said Spc. Jason Hartley, 32, who says he was demoted from sergeant and fined for reposting a blog he created while deployed to Iraq with the New York Army National Guard.

According to Hartley, the Army had forced him to stop the blog even before the oversight operation existed, citing pictures he had posted of Iraqi detainees and discussions of how he loaded a weapon and the route his unit took to get to Iraq.

Wired News' Xeni Jardin (who has the best story of the lot):

Blackfive's [Matt] Burden says soldiers are receiving mixed messages: some receive approval from their immediate commanders, only later to be rebuked by more senior officials. Burden says his site and another milblog, Armor Geddon, were once featured in an internal Army PowerPoint presentation which described both as serious operational security risks.

"That kind of message from the administration of the Army sends a chilling signal to a young soldier who was told by his commander that it was okay to do what he was doing," Burden told Wired News.

He and fellow milbloggers gathered this year in April for a first ever MilBlog Conference in Washington, DC. They plan to reconvene in May, 2007. Debate over how to address authorities' OPSEC concerns without creating a "chilling effect" among bloggers was a heated topic at the 2006 gathering.

"My advice would be to bring together active duty, reserve and veteran bloggers to take a look at this issue in a way that would help the military," Burden says, "There's a lot of positive information coming from these 1,200 or so military blogs, and if it's not positive, it's giving people a better understanding of what it's like to be a soldier or the family of a soldier fighting this war."

Active duty milblogger John Noonan co-edits OPFOR (military slang for "opposing force") and posts on such topics as "foreign policy, wargaming, grand strategy and hippy bashing."

Noonan is among those who believe the current flap is partly the result of a generation gap between younger, tech-savvy recruits for whom life online is second nature and older, more senior military officials who don't get the net and are accustomed to the military's long-established history of carefully monitoring release of information from the battlefield.

"They don't want to lose the traditional control they've had over information released from the battlefield to the American people," Noonan said. "It's counterintuitive for military guys who are used to total control over what information is released and what isn't, to all of a sudden having zero control."

Xeni also filed a story for NPR's Day to Day, which should air this afternoon.

UPDATE 3:01 PM: The NPR segment is up now.

UPDATE 10/31/06 4:20 PM: ABC News weighs in here, with some pretty bruising commentary from Blackfive. Note to self: Do not piss this guy off.

New Space Policy? No Way!

I'm sure a bazillion bloggers are going to squeal in paranoia about this Washington Post story, on the Bush Administration's new space policy. But, of course, they could have been squealing a full week earlier, if they had just read Defense Tech first.

Thanks to Haninah Levine and Theresa Hitchens, this site was on top of the more martial space plan on October 11th. Other elements of the story -- the Air Force's "Counterspace Operations Doctrine," the Chinese laser supposedly that's targeting U.S. satellites -- have all been addressed here, too. A long time ago.

And so, with that, I'm ushering in a new category: "Eat DT's Dust" -- stories that the mainstream press takes up, long after this site has dealt with 'em. I'm posthumously inducting Jeffrey Lewis' post, "NORK Nuclear Test: It's A Dud," into the club, too. The Wonk beat all the big papers to the now-universal conclusion.

There are plenty of times, of course, when Defense Tech just points to, or comments on, stories that have been broken by outlets like the Times, the Post, or ABC News. But when it's the reverse -- well, I figure we ought to strut our stuff just a little bit more.

NORK Nuclear Test: It's A Dud (Updated)

HA HA HA HA.

I -- Jeffrey Lewis, crossposting from Arms Control Wonk -- love the US Geological Survey.

They've published lat/long (41.294 N, 129.134 E) and Mb estimates (4.2) for the North Korean test.

There is lots of data floating around: The CTBTO called it 4.0; The South Koreans report 3.58-3.7.

You're thinking, 3.6, 4.2, in that neighborhood. Seismic scales, like the Richter, are logarithmic, so that neighborhood can be pretty big.

But even at 4.2, the test was probablya dud.

Estimating the yield is tricky business, because it depends on the geology of the test site. The South Koreans called the yield half a kiloton (550 tons), which is more or less -- a factor of two -- consistent with the relationship for tests in that yield range at the Soviet Shagan test site:

Mb = 4.262 + .973LogW

Where Mb is the magnitude of the body wave, and W is the yield.

3.58-3.7 gives you a couple hundred tons (not kilotons), which is pretty close in this business unless you're really math positive. The same equation, given the US estimate of 4.2, yields (pun intended) around a kiloton.

A plutonium device should produce a yield in the range of the 20 kilotons, like the one we dropped on Nagasaki. No one has ever dudded their first test of a simple fission device. North Korean nuclear scientists are now officially the worst ever.

Of course, I want to see what the US IC says. If/when the test vents, we could have some radionuclide data -- maybe in the next 72 hours or so.

But, from the initial data, I'd say someone with no workable nuclear weapons (Kim Jong Il, I am looking at you) should be crapping his pants right now.

First the missile, then the bomb. Got anything else you wanna try out there, chief?

-- Jeffrey Lewis, cross-posted at Arms Control Wonk.com

UPDATE 10/10/06 1:14 AM: Noah here. Looks like the LA and NY Times have both picked up (sorta) on what the good Wonk was sayin'.

Throughout history, the first detonations of aspiring nuclear powers have tended to pack the destructive power of 10,000 to 60,000 tons — 10 to 60 kilotons — of conventional high explosives.

But the strength of the North Korean test appears to have been a small fraction of that: around a kiloton or less, according to scientists monitoring the global arrays of seismometers that detect faint trembles in the earth from distant blasts...

Philip E. Coyle III, a former director of weapons testing at the Pentagon and former director of nuclear testing for the Lawrence Livermore National Laboratory, a weapons design center in California, said the small size of the test signaled the possibility of what might be described as a partial success or a partial failure.

“As first tests go, this is smaller and less successful than those of the other nuclear powers,” he said.

Perhaps the North Koreans wanted to keep it small, he added. “But if it turns out to be a kiloton or less,” Dr. Coyle said, “that would suggest that they hoped for more than that and didn’t get it.”

UPDATE 10/10/06 8:45 AM: Rumor alert! Stratfor is pretty sure that the Nork nuke -- "about one-fortieth of the Nagasaki blast" -- was a dud, too. But, just to be on the safe side, the intel service offers up "three possible explanations for the apparently small yield: the North Koreans deliberately detonated a very small device, they tested a larger device but it failed to execute properly, or the explosion was not caused by an atomic device."

Possibly the North Koreans wanted to show that they had the technology but did not want to appear too threatening, so they minimized the size. Or they could be demonstrating the ability to use lower-yield nuclear mines or artillery shells that would protect North Korea by blocking strategic passes into the country, and would possibly threaten Seoul but would not pose a significant threat elsewhere. Also, the water table is high in the area of the blast; maybe they were being careful not to break into the aquifer.

These are all good reasons, but the counterargument is that if you are going to go nuclear, go nuclear. North Korea does not have a pressing need -- or history -- of being subtle, so a small blast doesn't fit in with its plan...

What if the North Koreans didn't go nuclear, but detonated a large chemical explosive in an underground chamber? It would take a lot of explosive to yield that result, but it is not impossible. A chemical explosion would have a different seismic signature than a nuclear one, and therefore geologists should have already discounted this theory; but the analysis is going to take up to two days, according to the White House. It is certainly not beyond the North Koreans to fake a nuclear explosion, and there have been some big explosions in North Korea that have been mistaken, for a short period of time, for something nuclear. But there is no evidence, beyond our speculation, for this theory.

UPDATE 10/10/06 8:51 AM: Interesting counter-argument from Trent Telenko in the comments. Since North Korea has "had the complete design specifications for a Chinese missile-ready nuclear warhead of the plutonium implosion type for years," thanks to the A.Q. Khan network, this dud may be more dangerous than it seems.