Veterans for Common Sense

U.S. left ammo site unguarded

Friday, October 29, 2004
The Oregonian 
MIKE FRANCIS

Six months after the fall of Baghdad, a vast Iraqi weapons depot with tens of thousands of artillery rounds and other explosives remained unguarded, according to two U.S. aid workers who say they reported looting of the site to U.S. military officials.

The aid workers say they informed Lt. Gen. Ricardo S. Sanchez, the highest ranking Army officer in Iraq in October 2003 but were told that the United States did not have enough troops to seal off the facility, which included more than 60 bunkers packed with munitions.

“We were outraged,” said Wes Hare, city manager of La Grande, who was working in Iraq as part of a rebuilding program. A colleague who also visited the depot, Jerry Kuhaida, said it appeared that the explosives at the Ukhaider Ammunition Storage Area had found their way to insurgents targeting U.S. forces.

“There’s no question in my mind that the stuff in Ukhaider was used by terrorists,” said Kuhaida.

The issue of whether U.S. forces did enough to keep Iraqi munitions out of the hands of insurgents has emerged as a central issue in the presidential campaign. Sen. John Kerry said it was an example of the administration’s “continuing misjudgments” on Iraq while President Bush has dismissed the criticism as “wild charges.”

The bitter exchanges were prompted by reports Monday that as much as 377 tons of highly powerful explosives had disappeared from a weapons depot in Al-Qaqaa after the arrival of U.S. forces. Al-Qaqaa is about 50 miles northeast of the Ukhaider site, which was used to store artillery shells and small-arms ammunition.

A Pentagon official Thursday acknowledged that the United States had been forced to leave many ammunition dumps in Iraq unguarded. The official, who declined to be identified, said the U.S. military had identified about 900 sensitive weapons sites in Iraq but had assigned only “a brigade-sized force” to deal with them. A brigade typically has about 3,500 soldiers.

“The country was made into a major ammo dump by the Hussein regime as they prepared to fight, and have left cleanup to us,” the official said by e-mail. “If that were our only job we could devote more troops to the task, but the majority of our troops are fighting the enemy. When bullets are flying you’ve got to decide on your priorities, and sending a bullet back is the preferred alternative.”

The official said he could not speak to how Sanchez had handled the report about Ukhaider.

The Iraqi insurgency has effectively used what the U.S. military calls improvised explosive devices — artillery shells and other munitions buried in roads or carried by suicide car bombers. Hundreds of U.S. soldiers have been killed in Iraq by IEDs and thousands more maimed.

The two American aid workers who stumbled upon the Ukhaider depot, Hare and Kuhaida, were in Iraq as employees of the International City/County Management Association. They said in separate interviews that they found the depot on Oct. 10, 2003, while on a recreational trip with Polish soldiers through the desert southwest of Karbala, Iraq.

They visited a lake and the ruins of the Palace of Ukhaider.

After leaving the palace, they followed a remote road that led to a facility surrounded by several strands of barbed wire. As they got closer, Hare and Kuhaida said, they saw a series of open bunkers with mortar rounds, ammunition and loose gunpowder scattered around the grounds.

The area appeared to be guarded by a half-dozen kids in their teens and early 20s who had perhaps one rifle among them, and no vehicle to patrol the complex’s hundreds of acres. Kuhaida said nobody knew whether they were working for the military, the insurgents or someone else.

When he saw the ordnance littering the landscape, a Polish colonel traveling with the Americans, Cezary Rog, was in “shock,” Kuhaida recalled.

The kids who were stationed at the depot told Kuhaida and Hare that they regularly heard trucks coming and going at night. Hare said he was told that some weapons were ferried across the lake. And the men were shown an intruder’s truck that was blown up one night, apparently by an errant explosive.

Looters had been carting away munitions, Hare said. “It’s indisputable.”

“The big concern we had was that something had to be done,” Kuhaida said. “It was all fresh ammunition and gunpowder.”

So Kuhaida pledged to try to contact Sanchez, who was commanding U.S. forces in Iraq at the time. He found Sanchez’s e-mail address on the Internet and sent a message saying he wanted to pass along some information.

When one of the general’s aides replied, Kuhaida sent a list of munitions found at the depot, along with coordinates of its location. And he urged the military to secure the site.

The aide sent an immediate reply that said “they were taking action,” Kuhaida said.

But when Kuhaida met the aide face to face in Baghdad a month later and asked about the depot, the aide told him the military simply didn’t have enough troops to guard the site.

“There’s no question in my mind that these guys were sincere about it,” he said of their desire to keep munitions from falling into the wrong hands. “They just didn’t have the resources.”

Hare took a leave of absence from his municipal job in Oregon to serve as a civilian consultant to local governments in the Karbala region from September 2003 through March 2004. He currently is on a 10-day mission with the U.S. Agency for International Development in Croatia, where he spoke by phone to The Oregonian.

Kuhaida resigned his job as an elected official in Tennessee to serve in the same program. He now lives a “semi-retired” life at home, where he is considering whether to return to Iraq to help people who are trying to learn to govern themselves.

Hare said he didn’t see any looters at the depot that day last October. “If I had, I probably wouldn’t be here,” he said.

The presence of so much loose weaponry in the “essentially unguarded” complex, at a time when U.S. military vehicles were increasingly being attacked by roadside and vehicle-borne bombs, “was a travesty,” said Hare.

Kuhaida said he was troubled by the ability of insurgents and terrorists to freely enter and exit the depot. “It’s a straight shot to Syria and Jordan,” he said. And the depot is easily reached by back roads from Fallujah, a hotbed of anti-American sentiment.

U.S. military and intelligence officials were well aware of the facility. Declassified documents from the first Persian Gulf War show that it was bombed in 1991 as a suspected storage site for biological weapons.

On Jan. 16, 2003, before the U.S.-led invasion of Iraq, U.N. weapons inspectors said they found 11 empty chemical warheads at Ukhaider. They said at the time the complex consisted of a series of bunkers built in the late 1990s.

A week after the fall of Baghdad, on April 16, 2003, soldiers from the 82nd Airborne Division discovered the depot, according to a report in The Fayetteville (N.C.) Observer. The soldiers said they found 65 bunkers, 75 open depots, and enough ammunition to support nearly two divisions of soldiers. The soldiers said the depot held an estimated 200,000 156 mm artillery rounds, along with mortar rounds, tank rounds and rocket-propelled grenades, the anti-armor munition that has been a weapon of choice for the Iraqi insurgency.

“The site was five times bigger than the ammunition supply point at Fort Bragg,” said Maj. Joe Gregg, identified by The Observer as the operations officer for the 3rd Battalion of the 82nd’s 325th Airborne Infantry Division. Gregg, the newspaper said, believed it was the biggest weapons stockpile he had ever seen.

Mike Francis: 503-294-5955; mikefrancis@news.oregonian.com

A Soldier Speaks: David Grimm

David Grimm signed up to join the Florida National Guard in 1999. The former Marine, who’d entered the military straight out of high school, was glad to answer the call of duty when he was called up for combat duty in Iraq in December, 2002. But the veteran of U.S. operations in Somalia was in for a rude shock when he went into a war zone, this time as a member of the National Guard.

He found that in the Iraq War, there were separate rules for the reservists and the soldiers on active duty. Before long the 32-year old and his fellow guardsmen were writing home, asking for essential equipment that the Pentagon simply refused to provide for reservists. David’s parents had to send him batteries, and even radio equipment from Wal-Mart to make up for supplies that was missing or broken and not replaced. Night vision equipment amongst the reservists was in such short supply that soldiers had to take turns using it. Worst of all, guardsmen like David were expected to perform the same dangerous missions as regular soldiers, but without any body armor.

After his stint in Iraq – where David served as an infantry squad leader assigned to security operations and vehicle patrols – the 32-year old returned to his hometown of Pensacola, Fla., where he works as a wildland firefighter.

He spoke to AlterNet about what he learned from the ten long months he spent in Iraq.

Is there one memory from the war that still stays with you?

Yeah, there are several things that I think about often. One of them is the sense of camaraderie that you can only find when you’re in a tough situation. We got some low days when we had some injuries. We had some high days when everything was just fine.

We had an incident where two soldiers were wounded very badly. It was during a raid. One was shot in his face and the other in his stomach and legs. It happened on Dec. 23, 2003 – two days before Christmas – and they weren’t expected to live.

And what really upsets me and really pisses me off about it is that the military unit we were with did not want to call his family until after the holidays, because they didn’t want to upset them.

We were going through a really strenuous time then. We were taking a lot of casualties. And we were doing raids almost nightly in our sector. And it really upset me that the leadership didn’t want to own up to the fact that they had to say something to the parents.

So my platoon sergeant took it upon himself to make a call to the fathers of the two soldiers that night after we got back. He took a lot of grief for that because he’d stepped over the line. The thing that sticks out in my mind is that after we got back and talked to the families, they really supported him making that call.

They wanted to know. It was the only right thing to do. You can’t hide something like that, especially if someone is on his deathbed.

When you look back, how has this war changed you?

It’s made me stronger person in the sense of being able to hold up to my responsibilities. Over there, I was responsible for nine other guys as a squad leader. And being in a situation where you don’t have all the equipment that you might need or you don’t have the support that you might need, you have to go the extra mile for your soldiers. You have to maintain their security as well as your own.

That was probably the biggest life-changing experience for me – taking care of someone who is bleeding badly or dying right in front of you. And you just watch the color run out of their face. You have to think about what you have to do to pull everyone back together and keep them focused.

What are your hopes and fears now that you look at the future?

My hope is that I never have to do this again. Though if they asked me to, I would do it willingly.

And I’d like to start a family again some day soon. I’m single and don’t have any kids. I have a fear of not so much failing, but of not finding anybody – of being alone.

If you had five minutes with the president – whomever it may be on Nov. 3, George Bush or John Kerry – what would you say to him?

[laughs] I’ve been thinking about that question quite a lot.

As most people in America teach their kids, if you’re the big kid, you don’t need to be the bully. Sometimes you have to stand up for what’s right and not fight.

But if you are going to fight – and that is the only way to resolve the problem – go out to win. Don’t hold back. Don’t tie the hands of the soldiers. Fighting is not the best solution but if we are going to fight, then the soldiers need to be equipped properly.

We got our call up orders in Dec. 26, 2002. When we went to our mobilization site in Georgia – and as we were being issued all the equipment we were supposed to take – they refused to issue us body armor.

The military was told that since we were National Guard, we weren’t going get body armor. It was our state’s responsibility to send us with body armor. The state of Florida said, “No, you’re now on federal active duty. It’s the federal government’s job to supply you with body armor.”

We went to Kuwait in April. We were there for almost a month. All the other units at the camp had body armor. We didn’t get body armor until after we were in Baghdad for two months. And it took two soldiers being shot before we got body armor. Soldiers were writing home to their parents and begging them to send body armor.

To put it in perspective, when we left Iraq to come back to the United State, before we flew out of Iraq, we had turn in our body armor so they could ship it back down to Kuwait. There wasn’t enough body armor for the soldiers coming in.

The fact is that they sent us into the battle zone without proper equipment.

So that’s what I would say, “If we’re going to go to war, then we need to fight as soldiers not as politicians.”

Bush has no choice but to reinstate draft

President Bush may or may not have a secret plan to reinstate the draft. But this is beside the point. The deteriorating facts on the ground in Iraq, plus the Bush doctrine of acting pre-emptively and unilaterally against hostile regimes, will soon leave him no choice. If President Bush is re-elected, he will have to restart the draft.

Indeed, President Bush has already imposed Stage 1 of a new draft. Many soldiers whose enlistment period is up are not being allowed to leave the service, and those who left the service years ago are being forced to put on the uniform again against their will. It is clear that we already have a backdoor draft.

President Bush has effectively ended the all-volunteer military.

And Stage 2 of a reinstated draft would be easy to implement. Draft boards are already in place in every county in America, and young men who turn 18 are already required to register with their local draft board. A major terrorist attack could easily serve as the pretext for flipping the switch and setting this apparatus in motion.

It is obvious that our armed forces are stretched dangerously thin.

We do not have enough people in uniform to meet current needs in Iraq and Afghanistan, much less to deal with a confrontation with Iran or North Korea.

Right now, total active Army and Marine personnel number about 655,000, and that includes support units, training units, headquarters personnel and others who do not see combat. In a long, drawn-out war like Vietnam or Iraq, units sent to the front lines have to be rotated out periodically and replaced by an equal number of forces.

Currently, we have 135,000 troops in Iraq, 20,000 in Afghanistan, roughly 100,000 in Asia, and more than 100,000 in Europe. Our armed forces have been strained to the breaking point. To fill the gaps and shortages, tens of thousands of National Guard soldiers and reservists have been called up.

But there is a cost to all of this. Morale is suffering, as evidenced by the recent refusal of an Army Reserve platoon to carry out an order. Enlistments and re-enlistments are down. The Army National Guard fell 10 percent short of its 2004 recruiting goal. The regular Army has had to ease up on standards in order to meet its recruiting goals.

What if all-out civil war breaks out in Iraq, and we have to increase our troop strength to 200,000 or 300,000 to quell it? What if a newly re-elected President Bush decides to act pre-emptively against Iran, Syria or North Korea?

Today, people are hesitant to join the National Guard or reserves because of skyrocketing odds of being sent into combat or kept away from family and a job for a year or longer.

So where would Bush get the manpower to pacify Iraq while pursuing the next phases of his doctrine of pre-emptive, unilateral war? There is only one viable option: a reinstated draft.

It is probably too much to expect President Bush to acknowledge this before Election Day. But we would do well to remember when President Lyndon Johnson was running for election in 1964. Voters were afraid that he had a secret plan to escalate the war in Vietnam.

He denied it, repeatedly promising, “I will not send American boys half way around the world to do a job that Asian boys ought to be doing for themselves.”

Johnson was re-elected. And sure enough, millions of American boys were drafted and sent halfway around the world to Vietnam. More than 17,000 of those draftees got killed in combat.

Today we have good reasons to fear the return of the draft. George W. Bush may have avoided the draft when he was a young man. But if reelected, he will not be able to avoid the draft as President.

A pair of Mississippi women challenge the army brass on behalf of their soldier-husbands in Iraq

The Soldiers Who Said No

Iraqi pipeline: Patricia McCook (left) and Jackie Butler on the home front
(photo: Jaro Vacek)

No matter how the military ultimately decides to deal with Staff Sergeant Michael Butler for disobeying orders, once the war in Iraq is through with him, he’ll be welcomed home by an adoring family and the big yellow ribbon that is pinned to the tall long-leaf pine tree outside his one-story brick house in Jackson, Mississippi.

“I am very, very proud of him. He is a definite leader, someone who is capable of doing many things,” said Butler’s wife, Jackie, as she sat in her living room facing a wall of awards earned by her husband during his 24 years of duty in both the regular army and the reserves. There are a half-dozen Army Achievement Medals and a plaque for “1997 NCO [Non-Commissioned Officer] of the Year.” Four short words of high military praise are inscribed on it: “Can do. Damn good.”

It was that same type of leadership that Butler, 44, was exhibiting this month, his wife insisted, when he and 17 others in his army reserve platoon did the militarily unthinkable by refusing direct orders to drive a convoy of fuel trucks from their post at the Tallil Air Base in southern Iraq to Taji, north of Baghdad. Butler told his wife that their breakdown-prone trucks—and the lack of steel-plated armor on the vehicles—made them sitting ducks for hostile fire along the 200-mile route. According to Jackie Butler and family members of others in the unit, commanders of the 343rd Quartermaster Company reacted by arresting the soldiers at gunpoint, reading them their rights, and holding them in a tent under guard for 24 hours—actions denied by army spokesmen.

A day later, after Jackie Butler and others spread the alarm, the incident was worldwide news, providing sharp focus to charges that many troops in Iraq lack adequate equipment, criticism that dogged the Bush administration even before Democrat John Kerry made it a stock element of his stump speech. It has also rekindled memories of the last days of the Vietnam War, when there were incidents of demoralized U.S. troops refusing orders they believed would accomplish little other than placing themselves in peril.

Jackie Butler said she was less concerned with the big-picture implications of her husband’s actions than the fact that he was in trouble and needed her help. That news had come in an alarming call in the early morning of October 14 from a stranger who said he was a lieutenant in the army in Iraq and friendly with her husband. “He said, ‘Your husband snuck this note to me to call you, that you should call your sister-in-law and she should call the lawyers she knows, because he needs their help.’ I asked him what was going on, and he said, ‘Your husband has been charged with disobeying orders.’ I said, ‘What?’ He said, ‘Yes, your husband has been falsely accused. He is being held under guard right now. I have to go.’ Then he hung up.”

Butler said she immediately began calling family members. She also left a message at the local daily paper, the Jackson Clarion-Ledger.

A couple of miles away, Patricia McCook, whose husband, Sergeant Larry McCook, 41, was also serving in the 343rd, was awoken at 5:12 that same morning when he called from Iraq.

“He was saying, ‘Baby, baby, wake up, wake up please. Get a paper, take this down.’ He sounded panicky. He said they were trying to make them go to a place called Taji—I can’t even pronounce it. He said the trucks didn’t have protection, that it was a suicide mission. He said, ‘They’ve arrested us. They’ve got military police armed with guns guarding us; they read us our rights.’ He said, ‘Write these names down, these are the others in trouble with me.’ ”

Among the names her husband gave her was that of Michael Butler. The two wives had never met, but within a few days, Jackie Butler and Pat McCook were granting joint interviews to media from around the country, holding court in Butler’s living room, so much in tune with each other’s concerns that they noddingly finished each other’s sentences.

It was a sudden and unexpected thrust into the national spotlight, putting them at the crossroads of a volatile issue at the heart of the presidential election.

In many ways, they are an unlikely pair to be taking on a mighty military establishment. Both are devout churchgoers: Butler at Zion Travelers Missionary Baptist, McCook at the Jones Chapel Church in nearby Flora, Mississippi, where her husband is a deacon. McCook is raising a pair of teenagers; Butler, a hairstylist, is stepmother to two children, ages 10 and 14. The trunk of Pat McCook’s sedan bears a “Support Our Troops” yellow-ribbon sticker. Another urges people to find guidance through prayer. McCook was born in Flora and raised in Jackson; Butler has lived here all her life. Her modest but comfortable home is on a street of well-groomed lawns and spreading magnolias, a quiet neighborhood located in the city’s northeast, where the only discordant note is the protective metal bars that cover most windows. It is about a mile and a half from another pleasant neighborhood of single-family homes, where Jackson civil rights leader Medgar Evers was shot dead in his driveway in 1963 by a virulent racist.

Despite the unexpectedness of the crisis, both women quickly rose to the challenge posed by the emergency messages from the other side of the world. Armed with a mutual bedrock belief in their husbands’ integrity, they enlisted friends, relatives, and local politicians in a campaign to expose what they called “a terrible cover-up” by the army.

“It’s a leadership problem,” said McCook. “They knew those vehicles were unsafe. Why in the world would you send soldiers out unprotected like that?”

Probably their most effective calls were those to The Clarion-Ledger, where reporter Jeremy Hudson got the military to acknowledge the incident and wrote the initial account. National and international coverage followed. “I thought, Well, The Clarion-Ledger has it, that’ll be it, just a local story,” said McCook. “We’re surprised at all the national attention.”

They share the same analysis, however, of what’s driving the news. “It’s because it’s election time,” said McCook.

Both women declined to discuss their own political preferences. “I don’t deal with politics,” said Butler. “I vote for the best person.”

They both said, however, that they believed President Bush to be badly misinformed in his assurances to the public that troops in Iraq have all necessary equipment. “He should go to the 343rd,” said McCook.

“I don’t know how he says these soldiers are all so enthusiastic,” said Butler. “He is getting some bad information from someone.”

The issue of shortages isn’t new, they said.

“It’s not as though this hasn’t come up before,” said McCook. “Even General [Ricardo] Sanchez [former commander of coalition forces in Iraq] wrote a letter to the Pentagon about the equipment problem.”

“From what I was told there have been many direct orders disobeyed before this,” said Butler. “But it was just one person. This was so many, all at the same moment.”

“They all stood together, they made a united front, that’s what makes the difference,” added McCook. “It’s like a fist, it makes a mighty blow. I know you don’t have any clout when you stand alone.”

Pat McCook has a first-person understanding of how the military works. She spent three years on active duty, serving as an army administrative specialist in 1983 in Fort Polk, Louisiana, where she met her husband. “I loved everything about him,” she said. Larry McCook followed her home to Jackson and, about 10 years ago, joined the army reserves. He was working for the Hinds County Sheriff’s Office as a detention officer when he was called up last year. In February, he was shipped to Iraq from Rock Hill, South Carolina, where the 343rd is based.

Iraq is Michael Butler’s second round of combat in the Middle East. He served in the 1990–91 Gulf War and came home to Jackson, maintaining his enlistment in the reserves. He married Jackie three years ago. When he was summoned for active duty last fall he was working as a carpenter for the Jackson public school system. “I asked him why he was in the army,” said Jackie Butler. “He said, ‘Baby, I volunteered. I was looking to serve my country, and I wanted to go to school.’ He did, too. He got himself licensed as a mechanic and learned carpentry skills. He did well by the army.”

Jackie Butler gave her husband a pre-paid telephone calling card when he left. When he was able, they managed to speak two or three times a week. Not all of the calls were reassuring. “I’ve been talking to him on the phone when I hear the bombs coming in. You hear that sound, ‘Ssssss,’ and the explosion, and then my husband says, ‘Got to go, baby.’ ”

Michael Butler was home for a two-week leave at the end of August. “He was fine. We didn’t go out much; we had the family over, had a lot of fun, eating and laughing. At night, though, me and him would sit together and talk. He talked about the problems he was having over there, the trouble with the equipment. He told these stories. I said, ‘Just go to him, your commander.’ He said, ‘She’s a female, and I tried that. She’s not going to do anything.’ ”

Pat McCook also noted changes in her husband after he went to war. “Most of all I love his sense of humor; he is just a naturally funny man. People say he even looks like Eddie Murphy so he should be funny. But ever since he went over, I don’t hear it as much in him. I can tell he’s worried.”

Their husbands’ complaints kept coming back to the trucks, both women said. “I remember him pulling out of Rock Hill, South Carolina,” said Jackie Butler. “They had to drive down to Fort Stewart, Georgia. Even then the trucks were breaking down. He said he could’ve outrun those trucks, they went so slow. They were just no good.”

In Iraq, breakdowns had occurred while the trucks were on their way to deliver fuel and supplies, the men told their wives. “He said they just sleep on top of the trucks when that happens,” said Jackie Butler.

“What they wanted was bulletproof armor for the trucks,” said Pat McCook. “At least it gives them a fighting chance.”

McCook and Butler weren’t the only ones sending up alarms about the incarceration of the platoon members. Relatives of other soldiers in the 343rd also called the media. Some offered a different explanation for the platoon’s refusal to take the convoy to Taji. Rick Shealey of Quinton, Alabama, said his son Scott, 29, told him by phone that the fuel the platoon was ordered to deliver to Taji had been contaminated by diesel fuel and had been rejected as unusable when they had tried to deliver it to another army location.

“They had just got back from that trip when they got woken at 4 a.m. and told to take it to Taji,” Shealey said. “The soldiers sat there for three hours arguing with the commander, saying it didn’t make sense. They were saying, ‘Now what if that bad fuel got into a helicopter?’ ” said Shealey. “I asked my son, ‘Wasn’t you all tired?’ He said, ‘Daddy, we do that every day. Tiredness doesn’t matter. We are used to it. The point was that the fuel was contaminated. That’s the whole reason.’ ”

Jackie Butler and Pat McCook said that their husbands never raised the fuel issue in their initial conversations, and since then, both women say, their husbands have been guarded in their conversations with them about the incident. “We try not to talk about stuff like that over the phone now,” said Butler.

Whatever the army’s reasons—either the mini-maelstrom kicked up by the media, or its own second thoughts—the platoon members were freed after being held for about a day, according to relatives. Five members of the platoon, however, including Butler, McCook, and Shealey, were sent to other units. “They saw them as the ringleaders,” said Jackie Butler. Pat McCook said her husband told her he is back driving a fuel truck again, this time one in good condition and equipped with armor. “He said it’s like going from driving a Yugo to driving a Cadillac,” she said.

The army has sent other signals that it recognized that the soldiers had legitimate gripes. Last week, the military confirmed that the commander of the 343rd had been relieved of her duties. Although the army refused to name her, The Clarion-Ledger reported that it was Captain Nancy Daniels, the commander whom sergeants McCook and Butler had complained about. There have also been reports that the army will seek to have the leaders of the revolt released under a general discharge rather than bring courts-martial against them.

“What I would like is to have the army admit that this is why these soldiers did this—to save lives of other soldiers,” said Jackie Butler. “They should fix the problem, finish the mission, and get our husbands home—”

“Alive and whole,” interjected Pat McCook, beside her on the couch.

“The same way they left,” added Butler.

Judge blocks mandatory anthrax vaccine

WASHINGTON — For the second time in a year, a federal judge ordered the military Wednesday to stop requiring anthrax vaccines for U.S. military personnel.

U.S. District Judge Emmet G. Sullivan said the Food and Drug Administration violated its own procedures when it gave final approval to the vaccine last year because it failed to give the public an adequate opportunity to comment.

“The men and women of our armed forces deserve the assurance that the vaccines our government compels them to take into their bodies have been tested by the greatest scrutiny of all – public scrutiny,” Sullivan said.

Justice Department spokesman Charles Miller said the government was reviewing the anthrax decision and has made no decision yet whether to appeal. There was no immediate comment from the Defense Department.

Six unidentified service members had sued the Defense Department, arguing that the vaccine is experimental and that it was being improperly used for inhalation anthrax as well as exposure of the bacteria through the skin.

“We’re ecstatic,” said Mark Zaid, their attorney. “It validates our position of six years that the program was illegal and ill-conceived from day one.”

The federal government says the vaccine is safe and is not experimental.

Sullivan first ordered a halt to the mandatory vaccinations on Dec. 22, saying that vaccine was being used for an unapproved purpose. Eight days later, the FDA issued an order intended to give the vaccine final approval for use to prevent inhaled anthrax. Sullivan later lifted the ban, except for the six plaintiffs.

The soldiers had asked Sullivan to reinstate the prohibition. He agreed, rejecting the government’s claim that the FDA had considered arguments against the vaccine.

“While some individuals may have submitted comments as part of a citizen petition, it is clear to this court that if the status of the anthrax vaccine were open for public comment today, the agency would receive a deluge of comments and analysis that might inform an open-minded agency,” he said.

Without the FDA’s final approval, the vaccine is considered investigational. Congress has prohibited the military from giving investigational drugs to soldiers without their consent unless there is a presidential waiver.

More than 900,000 servicemen and women have received the shots, among the millions of doses of various vaccines administered to troops. Hundreds of service members have been punished or discharged for refusing them, according to the Pentagon.

To view the Court’s ruling, go to this link:

http://www.dcd.uscourts.gov/03-707c.pdf

The Coming Post-Election Chaos: A Storm Warning of Things to Come If the Vote Is as Close as Expected

This next presidential election, on November 2, may be followed by post-election chaos unlike any we’ve ever known

Look at the swirling, ugly currents currently at work in this conspicuously close race. There is Republicans’ history of going negative to win elections. There is Karl Rove’s disposition to challenge close elections in post-election brawls. And there is Democrats’ (and others) new unwillingness to roll over, as was done in 2000. Finally, look at the fact that a half-dozen lawsuits are in the works in the key states and more are being developed.

This is a climate for trouble. A storm warning is appropriate. In the end, attorneys and legal strategy could prove as important, if not more so, to the outcome of this election as the traditional political strategists and strategy.

Let’s go over each factor that spells trouble – and see how they may combine.

A GOP Disposition For Nasty Campaigns

Before this year’s race, the 1988 presidential race between George H. W. Bush and Michael Dukakis was well-known as the most foul of modern campaigns. The Bush campaign used Willie Horton to smear their way to the White House – with Lee Atwater playing the hardest of hardball.

Horton was a convicted murderer. Massachusetts Governor Dukakis gave him a prison furlough. Once furloughed, Horton held a white Maryland couple hostage for twelve hours, raping the woman and stabbing the man. By using these facts – and Horton’s mug shot – in a heavy-handed negative advertisement, Atwater turned the election for Bush. As a Southerner, especially, he must have understood how the ad catered to racial prejudice.

In the 2000 Republican primary race, George W. Bush used similar tactics against Senator John McCain. That’s no surprise: Bush’s political strategist Karl Rove, and Bush himself, were protégées’ and admirers of Lee Atwater. To my knowledge, all of Rove’s campaigns have accentuated the negative – often dwelling exclusively on nasty attacks. This one is no exception.

Thus, if Bush narrowly prevails on Election Day, the Democrats are likely to be in a less than congenial mood – and especially likely to go to court. And there will doubtless be fodder for litigation, given the GOP’s propensity to try to disqualify votes and voters.

The GOP’s Campaign Tactic Of Attempting to Disqualify Votes And Voters

In 1986, former Assistant United States Attorney James Brosnahan (today a noted San Francisco trial attorney) testified – based on an investigation the Justice Department had dispatched him to conduct – that as a young Phoenix attorney, Justice William Rehnquist had been part of conservative Republicans’ 1962 efforts to disqualify black and Hispanic voters who showed up to vote. Brosnahan’s testimony was supported by no less than fourteen additional witnesses. Rehnquist nevertheless became Chief Justice – thanks to the continued support of conservative Republicans.

During the 1964 Goldwater versus Johnson race, when I first heard of such tactics, I was appalled to hear friends bragging about excluding Johnson supporters from voting. Later, when I found myself working at the Department of Justice for Richard Kleindienst, we discussed such tactics.

Kleindienst served as director of field operations for Goldwater in 1964, and for Nixon in 1968. Remarkably, Kleindienst confided that he had engaged in fewer dubious tactics in 1968 than in 1964. If such efforts were mounted by the Nixon campaign in 1972, when I had a good overview of what was going on, I am not aware of it.

Even Nixon had his limits, and he was more interested in wooing white Southerners into the Republican ranks. He did so, successfully, when such Southern Democratic stalwarts and pillars of bigotry and racism as Senators Strom Thrumond and Jesse Helms joined the GOP. They renewed the party’s effort to disqualify voters who, and votes that, did not see the world as Republicans did. The racism became less blatant. After all, it had become a crime — which called for new tactics. Yet the revised stratagems were (and remain) anything but subtle.

The 2000 presidential race in Florida is an excellent example. Reportedly, Bush’s Florida victory came courtesy of 537 votes out of some six million. It’s plain from this slim margin that the GOP’s voter and vote disqualifying tactics cost Vice President Al Gore the presidency. (In the October 2004 issue of Vanity Fair, an excellent article entitled “The Path To Florida” explains how the Republicans nullified and disqualified literally hundreds of thousands of Florida votes.)

This lesson has not been lost on the Democrats – who are likely to refrain from conceding if they are losing in 2004 until all of the dubious disqualifications in closely-won swing states are sorted out.

Rove’s Refusal To Accept Defeat: The Knee-jerk Response of Suing

And it won’t only be the Democrats heading to court. Indeed, in Florida in 2000, it was Bush who sued first — while later falsely accusing Gore of starting the litigation.

Contrary to popular belief, it wasn’t merely the closeness of the tallying in what appeared to be unique circumstances in Florida that spawned litigation. To the contrary, suing is a standard operating procedure for Karl Rove when he is losing (or has lost) a race.

A recent profile of Karl Rove in the November 2004 Atlantic Monthly, entitled “Karl Rove In A Corner,” examines how Rove operates in a close race. While Rove has had only a few, his tactics are never pretty.

The article describes “Rove’s power, when challenged, to draw on an animal ferocity that far exceeds the chest-thumping bravado common to professional political operatives” – and notes that “Rove’s fiercest tendencies have been elided in national media coverage.”

Consider Rove’s role in a 1994 judicial campaign for the Alabama Supreme Court. Election returns showed his candidate had lost by 304 votes. But Rove went to court – not only suing to overturn the election, but at the same time, further campaigning to garner support for these efforts.

These maneuvers went on and on and on. Rove’s candidate and his opponent both appeared for Inauguration Day ceremonies, although neither was seated. Rove moved the matter from state to federal courts. And he appealed whenever he could – all the way up to the U. S. Supreme Court, which stayed the case almost a year after the election. In the end, Rove’s man won — purportedly by 262 votes.

Doubtless, Rove was similarly prepared to take Bush’s 2000 lawsuits as far as necessary. Had the U.S. Supreme Court bumped the case back to the Florida Supreme Court, and allowed the recount to conclude, doubtless Rove would have again challenged the recount – all the way back up to the U.S. Supreme Court if necessary.

Make no mistake: If Bush loses, and it is very close, Rove will want to litigate as long as possible, going to the U.S. Supreme Court (again) if possible.

Still Too Close To Call: The Conspicuous Closeness Of The 2004 Race

So far, no incumbent modern president has won or lost in a squeaker. Even races that looked close in the polls were subject to a last-minute surge in one direction. But we are now ten days away from the 2004 election, with no surge yet in evidence.

A late “October Surprise” might change that. Osama’s arrest would likely cause a surge for Bush. New and unequivocally damning evidence about the justification for the Iraq war could create a surge for Kerry. (Suppose, for instance, it became incontrovertible that Bush and Cheney knew that Saddam not only did not have WMD but also had terminal cancer.)

Still, without such a surprise, this race may be an historical photo finish. The electorate is deeply divided. Most of the undecided are now decided. So a true surge for either candidate is unlikely.

There is one wild card: Both sides – as well as many independent groups — have recently registered hundreds of thousands of new voters. Historically, newly registered voters have often not voted in the first election for which they were eligible. But that could change; it’s impossible to know.

Exactly how close will the race be? Of course, polls are an imperfect measure, and they tend to be less reliable the closer it is to Election Day. Still, as I write, and based on the consensus of polls I believe (historically) to be the most reliable, the situation appears to be this:

There are a total of 538 electoral votes. A simple majority of 270 wins. (If the candidates tie at 269, the tie is broken by the House of Representatives.)

President Bush seems to have a lock on 176 electoral votes from twenty states: AL-9, AK-3, AZ-10, GA-15, ID-4, IN-10, KS-6, KY-8, LA-9, MS-6, MT-3, NE-5, ND-3, OK-7, SC-3, TN-11, TX-34, UT-5, VA-13 and WY-3. Senator Kerry seems to have a lock on 153 electoral votes in ten states and the District of Columbia: CA-55, CT-7, DE-3, HI-4, IL-21, MD-10, MA-12, NY-31, RI-4, VT-3 and DC-3.

Six states with 51 electoral votes tilt toward Bush: AR-6, CO-9, MO-11, NV-5, NC-15 and WV-5. But six states with 63 electoral votes lean toward Kerry: ME-3 (note that Maine apportions its four electoral votes, and one vote still appears to be up for grabs), MI-17, MN-10, NJ-15, OR-7 and WA-11.

Suppose all the tilting states indeed go in the direction in which they are tilting. That gives Bush/Cheney 227 electoral votes, and Kerry/Edwards 216 votes.

There are still eight true swing states. In total, they have 95 electoral votes: IA-7, FL-27, ME-1, NH-4, NM-5, OH-20, PA-21, and WI-10.

It is in these states that election 2004 will ultimately be resolved – either in the voting booths, or in the courts. And note that none of these states, alone – even Florida, with its 27 votes – will give either candidate a win.

That means we could see simultaneous litigation in a number of states – chosen either because the polling was especially close, or because there are significant numbers of vulnerable votes to try to disqualify. It will be recalled that the possibility for multi-state litigation arose in 2000, before Florida became the focus; it could easily become a reality in 2004.

An Election For Attorneys: Neither Side Will Budge If Litigation Begins

When I discussed this situation with several attorneys on both sides, I realized none are likely to back down. The Democrats intend to play hardball to win this time; the Republicans feel that Democrats aren’t adhering to the letter of the law in registration efforts – and want to hold them to it.

It is impossible to get a complete count, but it appears that at least 10,000 – and possibly as many as 150,000 — attorneys, paralegals and law students will be working as observers, or handling election problems, on November 2– just in the swing states. They have been trained in the relevant state’s election laws, and they will focus on the casting and counting of votes.

With so many legal minds looking for problems and such combative attitudes on both sides, litigation seems inevitable – especially if the November 2 tally is close. And if litigation starts, it won’t stop soon: A game of litigation chicken — testing who will fold first – seems likely, with each party bent on holding out.

The Nightmare Scenario: An Election Up in the Air For Months

It may be days or weeks, if not months, before we know the final results of this presidential election. And given the Republican control of the government, if Karl Rove is on the losing side, it could be years: He will take every issue (if he is losing) to its ultimate appeal in every state he can.

The cost of such litigation will be great – with the capital of citizens’ trust in their government, and its election processes, sinking along with the nation’s (if not the world’s) financial markets, which loathe uncertainty. After Bush v. Gore, is there any doubt how the high Court would resolve another round? This time, though, the Court, too, will pay more dearly. With persuasive power as its only source of authority, the Court’s power will diminish as the American people’s cynicism skyrockets.

It does not seem to trouble either Rove or Bush that they are moving us toward a Twenty-first Century civil war — and that, once again, Southern conservatism is at its core. Only a miracle, it strikes me, can prevent this election from descending into post-election chaos. But given the alternatives, a miracle is what I am hoping for.