On Thursday, a coalition of veterans suing the Department of Veterans Affairs won a major legal victory in federal court, beating back a U.S. government maneuver to get the case tossed out of court. The case will now go forward, giving thousands (and potentially hundreds of thousands) of veterans a chance to challenge the VA's Kafka-esque rules for disability evaluations in court.

In nearly every lawsuit against the federal government, the Justice Department follows a script. Its talented lawyers wage a "scorched earth defense" — seeking to get the case dismissed, delayed or frustrated with a barrage of motions designed to keep the case from ever being heard on the merits. In Veterans for Common Sense vs. Nicholson, Case No. C-07-3758 SC (N.D. Cal. 2007), DOJ followed that script to the letter, throwing everything but the kitchen sink into their motion to dismiss: standing, the "political question" doctrine, sovereign immunity and application of the Administrative Procedure Act, lack of subject-matter jurisdiction, and general failure to state a claim.

Fortunately for the vets, Judge Samuel Conti in the Northern District of California didn't buy the government's arguments. It's a very technical decision, but it basically boils down to the judge telling the executive branch: "Sorry fellas, but I've got jurisdiction to decide this one." One section illustrates this. Here's Judge Conti explaining how the existing veterans appeal process just ain't good enough for these plaintiffs:

. . . Defendants assert that the system for adjudicating veterans' claims, as established by the VJRA, provides the opportunity for an alternate adequate remedy.

The system established by Congress for adjudicating veterans' individual benefit claims does not provide an adequate alternative remedy for Plaintiffs' claims for several reasons. The CAVC, an Article I appellate court, only has jurisdiction to affirm, reverse, or remand decisions of the BVA on individual claims for benefits. See 38 U.S.C. § 7252(a). The CAVC's jurisdiction is therefore limited to the issues raised by each veteran based on the facts in his or her claim file from his or her particular case. See, e.g., Clearly v. Brown, 8 Vet. App. 305, 307 (1995) (stating "[i]n order to obtain review by the Court of Veterans Appeals of a final decision of the Board of Veterans' Appeals, a person adversely affected by that action must file a notice of appeal with the Court") (emphasis added). Accordingly, the CAVC would not have jurisdiction over or the power to provide a remedy for the systemic, constitutional challenges to the VA health system such as those currently alleged by Plaintiffs.

* * *
. . . Under the position advocated by Defendants, Plaintiffs would be barred from raising these particular claims in any forum. Plaintiffs' members would be left to litigate their own individual claims while also attempting to shoehorn into their claims the challenges now asserted by Plaintiffs. The statutory framework of the VA benefits system does not provide for this and, as such, the VA benefits system is not an adequate alternate forum. [emphasis added]

In other words, the VA appeals system only lets vets challenge the system within the boundaries of their particular case. And since the VA can moot the really hard cases by simply granting veterans benefits, many of the really strong challenges to VA practice and procedure never see the light of day. So Judge Conti is allowing these veterans to bring their case in federal court, where they might be able to challenge the broader policies, procedures and actions of the VA.

Later in his opinion, Judge Conti makes a point that’s critically important for today’s generation of Iraq and Afghanistan veterans. The vets suit argues that the VA had unconstitutionally deprived returning Iraq and Afghanistan vets of the health care federal law mandates they receive. The defendants (your own federal government) said that wasn’t true, and in any case, it didn’t rise to the level of a Constitutional violation. Judge Conti disagreed, writing that “Plaintiffs' claim that veterans are systematically denied statutorily mandated health care within two years after returning from wars and lack any recourse for obtaining this entitlement states a valid due process violation.” [emphasis added]

I think this is a good outcome — but it raises two thorny questions for me as a lawyer and advocate on veterans issues:

1) Is the system so screwed up that vets have to sue? One of the government's defense — the political question doctrine — makes a good deal of sense to me. We have a democratic process and Constitutional systems in place for citizens to seek redress from their government. In theory, veterans should be able to go to their members of Congress, their President, their veterans service organizations, their local media, and other outlets, and fight for change. Veterans have been a powerful lobby in this country in the past, and they can still be a powerful political force. But though the VA system has had problems for years (if not decades), vets have not been able to coalesce or produce meaningful, sustained, effective change on these issues. Why not?

2) Are federal courts the best forum for the resolution of these issues? The American court system is good at many things, but I would argue that its core competency is the adjudication of individual cases with specific disputes over fact and law. Our rules of procedure and evidence, as well as our caselaw, have evolved to focus courts on specific issues and limit the scope of their inquiry, as well as the remedies they might give. So, for example, courts do great at deciding whether a specific warrantless search complied with the 4th Amendment, but they don't do so well at telling police departments how many searches they should be doing, or whether a particular community policing strategy should be adopted. In my opinion, these are broader questions best examined and dealt with by legislatures and other public bodies designed to do so. And when federal courts intrude into this area, they often don't get it right.

But what about the vets? Quite right. Today’s vets are getting screwed by their government. No doubt about it. It's a damn shame that our sons and daughters who served in uniform have to wait 6 months for an initial adjudication, and up to 2 years for a VA appeal. The Kafka-esque system of evaluations, guidelines, reviews and appeals has evolved to the point where it does more to protect the government than help the veteran. This is particularly true for the softer diagnoses like Post-Traumatic Stress Disorder, where the VA imposes a heightened standard of review and proof that’s damn near impossible for vets to meet, and only adds to the difficulty of getting treatment. That’s just flat-ass wrong.

So now we've reached the point where the federal courts may have to step in because the harm to these individual veterans has become so great that they can't take it anymore. The VA has failed them. The political process has failed them. Fortunately, for these veterans and for America, Judge Conti didn't fail them. He listened to these vets and decided to let their case go forward.

But that's not good enough. We can do better. Write or call your member of Congress — tell him or her that you support these vets but are appalled they have to sue to get change out of the VA. Tell them to support the IAVA legislative agenda, which covers GI Bill benefits, support for reservists, and many other areas in addition to healthcare. Elect a candidate for president who cares about veterans and doesn't just see them as props for his political events. And show veterans in your community that you care about their plight. Let them know they're not alone. Soldiers have an ethos that we never leave a comrade behind — it's time America lived up to that too.

A few friends and colleagues have published interesting and important articles, reports or studies lately that I wanted to highlight for Intel Dump's readers:

"Mind the Gap: Post-Iraq Civil-Military Relations in America," By Michael P. Noonan, Foreign Policy Research Institute. This is a conference report on a program held by FPRI on October 15, 2007, on the subject of American civil-military relations. More than 100 people attended the event, including academia, government, NGOs, the media, the military, and the public. The full conference papers will be published in Orbis and other outlets in 2008. Mike's summary of the conference: "Overall, most participants seemed to agree that American civil-military relations were troubled even before the Iraq war, which conflict has only exacerbated frictions."

"Community Policing and Violence Prevention in Oakland: Measure Y in Action," from Jeremy M. Wilson, Amy G. Cox, Tommy L. Smith, Hans Bos, and Terry Fain at RAND. The title caught my eye because community policing is the close cousin of counterinsurgency -- at their core, they're about providing security for the people and addressing the root causes of violence in a holistic way. This paper looks at the performance of the Oakland police in response to an initiative passed in 2004 which mandated more community policing. RAND's verdict is that not enough time has passed to evaluate performance against Measure Y. However, "early evidence on the implementation of the Measure Y community-policing program is not altogether positive." If you're a COIN scholar, I think you'll find this study very interesting, both for the measures of effectiveness it chooses/uses, and the recommendations it makes for Oakland.

"Building Partner Capabilities for Coalition Operations," by Jennifer D. P. Moroney, Nancy E. Blacker, Renee Buhr, James McFadden, Cathryn Quantic Thurston, and Anny Wong. More cool stuff for COIN scholars. Since the time when T.E. Lawrence roamed the Hejaz, or maybe before, the best imperial insurgents and counterinsurgents have figured out that it's almost always better to act through local partners and proxies than with your own imperial grunts. America is slowly, painfully, gradually learning this too in Iraq and Afghanistan. But that's hardly the limit to our security assistance abroad. Through Foreign Military Sales and International Military Education & Training, we conduct military-to-military diplomacy and security assistance programs with dozens of countries. In many ways, this is the leading edge of American foreign policy, and a very powerful tool at that. The RAND study takes a critical look at those programs. Among other things, it "discusses seven illustrative train and equip programs (TEPs) to identify specific lessons to inform Army planning and execution of TEPs in the future. It gives insights on the importance of developing and implementing metrics for security cooperation, an essential step in ensuring that Army activities are successful. The report then identifies U.S. Army capability gaps through a review of strategic and operational guidance documents and Army and joint studies. It outlines a five-step process for matching U.S. Army capability gaps with candidate partner armies." Yeah yeah yeah. Planning is great. But guys, it would also be really useful to have a capable advisor corps capable of, you know, implementing this great idea...

In Slate today, I have a column about the new offensive underway in Iraq's volatile Diyala province:

If your media diet for the last two weeks consisted exclusively of watching network news shows and reading the front pages of the major newspapers, you might have missed the fact that America is still at war. Although nearly every poll places Iraq at the top of voters' minds, and nearly every presidential candidate makes references to Iraq on the campaign trail, the war no longer dominates the daily headlines or the American consciousness.

Recent dispatches from Iraq should change that. Over the last week, seven U.S. combat battalions (roughly 10 percent of the total American combat force in Iraq) have poured into a 100-square-mile area northeast of Baghdad to root out al-Qaida in Mesopotamia cells. There have been many similar offensives over the last five years, but this one may be different. It may also serve as a harbinger of things to come. It represents the first post-surge offensive by the U.S. military—an attempt to clear an area without there being a sizable number of troops available to occupy it afterward. Reports of the assault also illustrate continuing problems with the Iraqi army—a force so untrustworthy that U.S. commanders refused to tell them about the operation until the eleventh hour. And this particular offensive may reveal some of the limits of our counterinsurgency tactics—although they worked in arid, Sunni-dominated Anbar, they may not be effective in rugged, lush, mixed-Sunni/Shiite/Kurdish Diyala.

Read the rest at Slate.com

Although not technically a "lame duck" administration until the election of a new president this November, the Bush administration has already started to display the signs and symptoms of late-term necrosis. Senior administration officials have fled for D.C. law firms, lobbying houses, universities and think tanks. Many agencies and departments are now being run by the 3rd or 4th appointee to hold that spot since Jan. 2001 -- if they're being run by a political appointee at all, because many spots are going unfilled. Suffice it to say that this isn't good for the actual business of government.

Now we have another casualty of the late-term administration blues and partisan politics: the Federal Election Commisssion. The 6-member body has dropped to 2 members -- one Democrat and one Republican -- and is now incapable of mustering a quorum or issuing any binding decisions. According to the Post:

This week, organizations with pending requests for decisions from the six-member FEC on campaign matters received phone calls from agency staffers letting them know not to expect formal rulings anytime soon.

The groups were told that the FEC's two remaining members will hold a public hearing Jan. 24 to share their informal views on the requests. The board lacks the four votes needed for the commission to take official action on a number of matters, including enforcement cases.

"For those things that require four votes, we'll take them up to the point where that requirement for a vote is triggered, and then put them on hold," said FEC Chairman David M. Mason, one of the two remaining members. "Work, I'm afraid, will continue to back up."

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The four vacancies are the result of a standoff between President Bush and Congress over one of Bush's nominees, Hans A. von Spakovsky. His critics contend that during his tenure in the Justice Department's civil rights division, von Spakovsky advocated a controversial Texas redistricting plan and fought to institute a requirement in Georgia that voters show photo identification before being permitted to cast ballots.

In the meantime, work is piling up. The FEC's 375 auditors, lawyers and investigators continue to collect and compile campaign finance disclosure reports and process other work that was underway last year, but a variety of matters that fall to the commissioners have been placed on hold indefinitely.

Campaign law allows politicians or political groups to seek formal FEC opinions so they can act with certainty and avoid later legal trouble. The FEC is supposed to respond to such requests in 60 days.

Given the rancor of this year's election, I'd say we're in trouble.

Senators Hillary Clinton and John McCain captured the flags last night for their respective parties' presidential nomination. Obviously, as an Obama supporter, I'm disappointed in the outcome. But I'm still buoyed by the record turnout and indications that young voters are turning out like never before. That's a good news story regardless of your party, and in the end, I think it'll prove to be better news for the Democrats.

Why were the polls so wrong in NH? Tough question. The Washington Post has a good analysis of what went wrong with polling — and it's a long list. The weather wrecked the predictive models used to forecast voting behavior; the turnout wrecked the models too. And, in the end, I think the spirited contests between Obama and Clinton / McCain and Romney really pushed people to the polls like never before. Take all polls from here on out with a grain of salt.

What next? The action moves to NV and SC. My candidate's in a strong position in Nevada after earning the endorsement of the powerful culinary union out there. And I think the Obama campaign has a natural edge in South Carolina — particularly if he can mobilize the African-American and veteran vote. Veterans? Hell yeah. Sen. Obama has done more for vets than just about any candidate in the race, including a ton of work for Iraq and Afghanistan veterans from his seat on the Senate Veterans Affairs Committee. Look for this to be a prominent pitch in the weeks to come.

Fired up! Ready to go!

Voters across New Hampshire are turning out in record numbers today in New Hampshire to cast their ballots in the primary elections which will help pick the 2008 nominees for President from the Democratic and Republican parties. It's inspiring to watch this many Americans step forward to participate in democracy. Heck, even infants are voting, as this picture from the NY Times depicts. Makes sense to me — they've got a big stake in the outcome.

I think that Sen. Barack Obama has a lot to do with this inspiration. America's looking for leadership in 2008 — not the kind of leadership through fear and division that we've had for the past 7 years. Americans need and want a president who will inspire us and lead the way to a better future. Sen. Obama is inspiring voters with his post-partisan appeals for hope and change, and I think those messages are really resonating with voters in New Hampshire. Even voters who don't support Obama are turning out in record numbers because of his inspiring campaign.

Every voter picks a candidate for different reasons. I've got my reasons for supporting Obama, but everyone walks into the ballot booth with a unique opinion and perspective. I think it's hard to say why support for Obama has surged over the last few weeks. Inside, I think each voter is taking a hard look at the candidates through the lens of the past 7 years, and asking themselves "Who can fix this mess that we're in?" One by one, voters are choosing Obama. I like this quote from the NYT because it reminds me of my mom, and also because I think it illustrates the way many voters are throwing their support to Sen. Obama:

Estelle Glover, a 57-year-old office manager wearing an American flag handkerchief around her neck when she voted at Bedford High School, was typical of many of the state’s independents in that she had just made up her mind. She had chosen Mr. Obama.

“I decided this morning,” she said. “I’m an independent voter. I feel he’s going to be like the John F. Kennedy of the year 2008. My son just got back from Iraq.”

“First it was McCain, but really watching him, I feel he’s lost that spark eight years ago,” Mrs. Glover said. “Right up until last night it was between Hillary and Obama, and I didn’t vote for Hillary because I wanted a president who’s going to go in there and do his own thing.”

Me too.

In today's New York Times, conservative columnist William Kristol sharpens his pencil a bit by writing off Hillary Clinton, writing in Mike Huckabee, and saying how most of Americans still don't believe in the hopeful message offered by Obama. And over in the Wall Street Journal, Brookings scholar Michael O'Hanlon sharpens his pencil a bit on Obama too, taking aim at the Democratic frontrunner's Iraq positions:

Since I'm a national security guy, I'll take a few shots at the latter column. The essence of O'Hanlon's column boils down to the following three points, with my response below each quote:

1. "First, he seems contemptuous of the motivations of those who supported the war."

Ummm... yeah. I think that's the point. I've read a number of the Iraq histories, and I don't think too highly of the senior administration and military officials who marched us to war. I think Obama is justifiably contemptuous of the Bush-Cheney circle which took this nation to war. I think he also feels a great deal of disappointment in the Congressional Democrats who voted for the war, and gave the administration such carte blanche. Especially those members of Congress who had access to the full National Intelligence Estimate and didn't read it.

2. "Mr. Obama's second Iraq problem is his insistence that, whatever happens there during 2008, he would withdraw all our main combat forces in the first 16 months of his presidency ... Given Iraq's fragile institutions, and the fresh wounds among its Shiites, Sunnis and Kurds, it is doubtful that Iraq can avoid renewed civil warfare after a rapid U.S. withdrawal."

Renewed civil warfare? You mean, like we have now with 160,000 troops there? Things aren't peachy keen in Iraq these days, especially as we've started to draw down troops in places like Diyala. As I wrote for Slate a couple of months ago, it's a lot more likely that today's security improvements are the result of Iraqi developments which were catalyzed by the surge, and it's not at all clear what will happen when we draw down. And is a 16-month withdrawal really a rapid withdrawal anyway? Hardly. And I'm soooo tired of this canard about how "precipitous withdrawal" will, with no uncertainty, lead to open civil war. It might. But then, it might not. And if we pull out over the course of 16 months, in a judicious and deliberate manner, there's a good chance it won't. There's an old Army maxim that "hope is not a method" — but in Iraq, insha'allah is.

3. "Mr. Obama's other comment Saturday, that Sunni tribes only organized against al Qaeda after Democrats won the 2006 Congressional elections, was also incorrect. The Sunni awakening began earlier, for reasons having little to do with American politics."

Tough one — this is a question of fact and causation. O'Hanlon has a monopoly on neither. He is right that the "Anbar awakening" began long before the surge, the brainchild of innovative Army and Marine officers in Anbar who did what officers do: they took a pile of sh-t and made it into a sh-t sandwich. (Pardon the crude metaphor, but I think it's appropriate.) They seized moments of opportunity and leveraged them to the hilt. However, it's also true that the Sunnis went along because they perceived it was in their interests to do so. Why? Well, partly because they saw U.S. troop levels declining as a function of U.S. domestic politics, and they felt it was important to forge some kind of tribal alliance in order to oppose the Shiite theo-kleptocracy in Baghdad. Which was the driving force? Hard to say. Causation isn't exactly a straight line in a place like Iraq. If I were O'Hanlon, I'd write this paragraph with a helluva lot more nuance.

What's the bottom line? I don't know. I read this op-ed in the Journal this morning and started scratching my head and asking myself: "Why did O'Hanlon write this? Does he want to get back into the Clinton camp, or is he hedging his bets for a McCain administration? The tagline indicates that he used to be an advisor to Sen. Clinton, but he had a break with her last year over his support for the "surge." I'm still scratching my head. I think he's a really smart guy and his Iraq stats project at Brookings is first-rate. But I really can't figure out what's going on here with this op-ed, besides a little bit of sniping from the sidelines. Things that make you go hmmm...