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Thursday, November 17, 2005

War Crimes: How Special Counsel and Grand Jury can exploit Joint Staff fissures

As you prepare for discovery of alleged war crimes, there are a number of emerging patterns Special Counsel Fitzgerald may wish to consider.

There is an underlying theme within the Joint Staff: They are under increasing pressure to make policy-driven decisions, thereby increasing the chances of errors which the new Grand Jury can exploit.

As the war crimes trial and impeachment continues to make progress, the essential problem for the prosecutor will be to exploit the disconnects in the lines of evidence. We outline a sample of how this analysis would unfold and show how a fairly benign event can yield a gold mine for the grand jury.

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For Humor and Satire [Fair Use: Comment, Parody]

Fitzgerald knocks on the Joint Staff door [click to enlarge]:

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Syria: The White House disconnect

Operations Steel Curtain on the Iraq-Syrian border has been to go after insurgents.

The State Department suggests that Syria is a source of insurgents.

However, the Joint Staff is of the opinion that the insurgency in Iraq is not rising.

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The issue: Why is there a disconnect between what the State Department, Joint Staff, and White House statements on Iraq?

The problem appears to be related to a communication within the Joint Staff. Iraqi analysts are of the opinion that the insurgency in Iraq is stable, not growing.

However, combat operations are premised on the assumption that there are insurgents moving along or from Syria into Iraq.

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We judge that there is a horizontal and vertical communication problem within the Joint Staff.

The disconnect is roughly divided along two general camps:

  • A. Analysis where the facts and assessments reasonably relate to options; and

  • B. Policy where the plans, actions and statements are disconnected from the conditions on the ground.

    The White House policy appears to have not caught up with the reality on the ground: The Americans no longer have a role in describing alternative political frameworks for Iraq. Rather, the Iraqis have full control. It is a separate issue what the Iraqis have control of, or whether that control is effective.

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    The Americans appear to have not grasped the concept of sovereignty, nor have they let go of their political objectives.

    What the Americans characterize as what "should" happen is at odds with the available resources.

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    The detailed analysis and assessment would be valid if the US controlled the area; the Americans do not, self-evident by two major factors.

  • First, the insurgency continues. There can be a debate over whether the insurgency is rising, falling, level, or contained.

  • Second, the Constitution of Iraq is no longer up for debate; nor does the US have any say in what is or is not included.

    Regardless what the US does or doesn't do either militarily or politically, the political fissures are widening. The Iraqi civil war, already underway, will not be solved either with or without the US presence. Without massive increases in troops on the ground, America is largely irrelevant as a force of meaningful long-term influence in Iraq.

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    Syria and Iraq are separate issues. However, the White House hopes to link the unsolvable problem in Iraq with Syria. Bluntly, if the insurgency is not growing as some believe in the Joint Staff, the White House cannot explain why it is concerned with Syria.

    However, if the White House is correct, and the insurgency remains a problem because of Syria, then the Joint Staff have got it wrong.

    Either way: The White House and Joint Staff are not on the same piece of music. It remains unclear whether the rift is wider between [a] the White House and the Joint Chiefs of Staff; or [b] the Joint Staff and the analysts.

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    The Joint Staff also has another problem. It’s communications and public relations efforts are disconnected from the Central Intelligence Agency.

    Current Joint Staff position papers and analysis focus on the time and complexity of the issues in Iraq; however, these assessments are consistent with the CIA assessments of 2002: That the situation would be complicated.

    The issue isn’t whether the Joint Staff and CIA are on the same page, but rather, the magnitude of the time lag between apolitical assessments and self-evident problems. The 2002-3 invasion plans are at odds with the forecasts, foreseeable risk, and self-evident problems in Iraq.

    It remains to be understood why the Joint Staff is unable to mask the rifts between the Staff and the White House, thereby exposing the White House delay in embracing what the CIA and State Department planners have well known

    The issue is that the Joint Staff’s plans and combat operations were premised on assumptions from the White House, not the analysts. Now in 2005, despite the problem of having actions disconnected from facts, the policymakers continue to drive combat operations. It appears as though there are many with non-disclosure agreements who know the problems, but there is a ruse in place to create the illusion that the ground commanders and military forces are working strictly for security purposes. It remains a matter of law whether these agreements are unenforceable for purposes of discovery.

    If the lessons of the failed Iraq invasion planning were real, understood, and embraced, we would not have a disconnect between [a] Joint Staff Assessments; [b] State Department policy statements; [c] combat operations; [d] actual conditions; and [e] White House plans and statements.

    Given the continuing disconnect and failure to credibly respond to the Senate Intelligence Committee requests for information, we see little evidence that the needed catalyst for harmony will occur.

    We distinguish between policies, statements, and assessments. We expect the continued combat operations will be less connected with statements and assessments within both the White House and the Joint Staff, and more connected with White House policies. We anticipate there will be a greater fissure between the Joint Staff analysts, the White House and the Senior commanders as the inconsistencies become more obvious.

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    It appears the facts are at odds with the public relations objectives. The conditions and basis for operations are loosely connected with the factual analysis and Joint Staff judgments.

    The dilemma is simple. Either

    [a] Joint Staff assessments are wrong, and the insurgents have a growing bonafide force, and the analysis is faulty; or

    [b] The assessments are right, and there are non-sense reasons for combat on the Syrian border.

    The Joint Staff has no say whether the conditions for withdrawal from Iraq are matched with adequate or sufficient resources; nor that these conditions are adhered to. These are matters outside their legal authority. In the absence of this authority, but what appears to be a likely requirement, it remains a matter of evidence to what extent nonqualified personnel are put in positions of authority and responsibility. It remains a matter of law to assess to what extent these promotions or personnel transfers are not in compliance with Congressionally-mandated rules. It remains a matter of evidence to what extent resource requirements are filled using non-standard or inadequate material that contracting and approving authorities continue to otherwise condone.

    We judge the subordinate commanders continue to engage in combat operations which they feel are largely irrelevant and disconnect from the underlying shifts in power and risks.

    We judge there is a communication problem between the field level commanders and the Joint Staff. These communication problems are likely to manifest themselves as disconnects in resource allocation, clarifying success criteria, and planning.

    We judge that the insurgency in Iraq continues to grow; the fissures underlying the spreading civil war continue to widen; cross-border flow of personnel from Syria to Iraq is unrelated to the insurgency and irrelevant; Joint Staff assessments are faulty; and subordinate commanders know they have insufficient resources to meet the politically driven operations in Iraq. These problems will compound themselves should combat operations expand into Syria or Iran.

    We judge that the operations on the Syrian border are more designed to evaluate the prospects of baiting the Syrians into a military skirmish; and thereby influence American public opinion about US combat operations in Iraq and Syria.

    We judge as the situation deteriorates, the fissures between [a] analysis [facts, assessments, option studies]; and [b] policy [plans, actions, statements] will widen. The likely engagement with Syria will exacerbate the problems such a diversion is designed to overshadow.

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    The situation on the ground in Iraq is moving far more quickly than the Administration can effectively monitor, much less manage.

    There are general problems related to leadership, integration, analysis, and experience. The well known problems include:

  • There is no single voice;

  • There are continuing and growing disconnects on expectations;

  • Assertions are not supported by the available facts or assessments;

  • The assessments are premised on invalid assumptions related to physical and legal span of control;

  • Policy options are disconnected from the underlying political trends, less within American influence; and

  • Idealized outcomes are at odds with the resources commanders have, and what the White House and policy makers are willing to provide.

    We judge the experience and lessons learned from the 2002-3 State Department and CIA planning have ineffectively penetrated the Joint Staff. Not withstanding the apparent misstatements and alleged perjury before the Grand Jury, there appear to be issues with documentation as well as fraud indicators per SAS99. It remains a matter of law to assess to what extent the apparent auditing, internal control, communication problems have acted as a catalyst and justification for violating standard operating procedures.

    The Joint Staff planning cells appear to lack key players, and are not effectively led by politically-connected officers able to balance the myriad of issues and political constraints. They are in a no win situation. It remains a matter of evidence to determine at what point specifically named individuals were aware of these trends; to what extent they informed their commanders and supervisors of their concerns; whether these issues were adequately documented; and to what extent the issues were presented, but rejected, by the White House when they had the lawful requirement to review the matter.

    We judge the White House statements are not related to an effort to effectively harmonize the players, but to speak to those analysts and RNC members who have not given up. This is a sign of a White House under political siege, overwhelmed, and largely ineffective in overseeing complicated political and military operations. It remains a matter of law to what extent the White House, and specifically the President and Vice President have known about this problem, but have made false and materially misleading statements to Congress with the expectation that they be relied upon.

    We judge the Joint Staff has a manning shortage in analysts, area specialists, and has ineffective liaison with the White House. It remains a matter of law to what extent the requisite talent, experience, and necessary staffing positions have gone unfilled through neglect and malfeasance; and to what extent personnel with insufficient experience have been promoted to fill these finances. It remains a matter of evidence to what extent the OPM has adequately complied with the advertising, hiring, and screening requirements

    The Joint Staff general counsel and advice appears to be weak and ineffective. They do not appear to be well versed or experienced on the fairly benign oversight issues of monitoring 5100.77 implementation, reviews, and investigations during combat operations. They are not effectively integrated within the planning cells, nor able to effectively assert themselves against the White House policies. It remains a matter of law and evidence to what extent JAG officers on the joint staff have failed to vigorously oppose what appear to be unlawful orders from SecDef and the Commander in Chief.