National Security

Not Much Better Than 'Nothing'

Esquire's article about "The Shooter" got it wrong, but our veterans' care is still shot.

Phil Bronstein's riveting Esquire feature on "The Shooter" -- the unnamed Navy SEAL who reportedly killed Osama Bin Laden during the May 2011 raid on the terrorist's compound in Pakistan -- is making waves, not least for claiming that that the former sailor has been deserted by his country. "[H]ere is what he gets from his employer and a grateful nation: Nothing. No pension, no healthcare, and no protection for himself or his family," Bronstein wrote.

A number of veterans have criticized the piece for its failure to accurately report on the benefits available to those who have left the service. But the article raises important issues with our nation's care for veterans. Although all veterans are eligible for government benefits, many struggle to obtain them. Perhaps more important, many (like the Shooter) perceive the system as being so broken that it may as well be closed to them. Similarly, the piece raises questions about the antiquated military retirement system, which gives nothing to sailors like the Shooter, who left the Navy after 16 years, but much to those who serve for 20 years, regardless of what they do in the service. More broadly, these questions lead to a much bigger one: What should the nation provide its veterans, and can the nation afford the current social contract with the military?

By law, all veterans are eligible for healthcare and other benefits from the Department of Veterans Affairs (VA). However, because the VA lacks the resources to treat every veteran, it prioritizes those who get access to its care, based on disability status, medical needs, and income. In practice, this closes doors to veterans without a "service-connected disability" rating. Last week's VA data shows there were 819,008 veterans waiting for such a rating, with 585,876 waiting for more than 125 days (what the VA calls its "claims backlog"). This backlog has been steadily growing over the past decade, as young and old veterans file claims at record-breaking rates. The VA currently projects the backlog will continue to grow until 2015, at which point it will see the effects of additional personnel, new computer systems, and process changes. Until then, veterans must wait to have their claims decided, a process that can take months or years.

Iraq and Afghanistan veterans can get into the VA healthcare system for up to five years after their discharge, and their initial claims are now being fast-tracked by the VA as well. But this approach still falls short for some veterans, because it covers only potentially service-connected ailments and does not provide any health coverage for families. And veterans must still contend with delays in seeking other benefits, such as their disability compensation, GI Bill benefits, and other programs.

So it's not exactly true, as the Esquire piece originally reported, that the Shooter will get "nothing" from his country after he leaves the Navy. But there is a perception that exists, for better or worse, that the VA is closed to new veterans. Cumulatively, the various barriers to entry (and the delays associated with each one) contribute to this perception. And the limits on VA benefits, and their ability to provide for military families, also contribute to the perception that the VA isn't doing enough for today's veterans. (A majority of servicemembers have families today, something that was not true during the mid-20th century, when the current VA benefits structure was built.) The nation could choose to do more for veterans, but doing so will cost a lot of money, at a time when budgets are being squeezed, even at the Defense Department and VA.

The second big issue raised by the Esquire piece relates to the basic fairness and effectiveness of the military retirement system. This system gives a generous retirement package to those who serve for 20 years or longer -- including at least 50 percent of base pay, health insurance (including family coverage), and other benefits like commissary access. However, the military retirement system gives nothing to those who serve fewer than 20 years, no matter how difficult or dangerous their service. The system does not distinguish between SEALs like the Shooter, who had a record of 12 combat deployments and the military's toughest training assignments, and those who serve 20 years in a relatively safe and comfortable job within the military. And by setting an arbitrary retirement mark of 20 years, the system creates many unintended effects and skewed incentives within the force, as chronicled well by Air Force vet and entrepreneur Tim Kane in his new book about the failures of the military personnel system.

A better retirement system would do away with the arbitrary 20-year retirement timeline, and also reflect the relative dangers and hardships of service. Veterans who serve for 5, 10, or 15 years should earn some retirement benefits for their service -- more than the Thrift Savings Plan and VA benefits they do today. And those who serve in the most difficult or dangerous jobs -- such as Navy SEALs, explosive ordnance disposal technicians, aircraft carrier flight deck crewmen, and infantrymen -- deserve to have their retirement timelines and benefits reflect their service. These personnel often face the most danger, inflict the most punishment on their bodies on the job, and frequently have the most difficulty translating their service into the civilian workforce. The retirement system should reflect these realities of service.

For most of the nation's history, the national social contract with veterans was quite stingy. From the Revolution through the Civil War, the government limited its support to care and pensions for those injured in the line of duty, and sometimes for their families, and that was it. The contract expanded after the First and Second World War to include a comprehensive package of disability compensation, educational benefits, housing benefits, and other programs. At the end of the Vietnam War, the military changed from a conscription-based force to a recruitment-based force -- and adjusted its pay and benefits systems accordingly. However, the VA's system of care and benefits remains largely unchanged from the post-World War II era.

For all its failings, the Esquire article asks an important, fundamental question: What does the nation owe its veterans in the 21st century? Telling the story through the lens of the SEAL who killed bin Laden puts a fine point on the issue, but the issue is much larger than one sailor. The social contract must evolve to fit today's force, and today's generation of veterans. The old VA models of disability compensation and healthcare do not fit the needs of today's veterans well, nor do they fit the realities of today's workforce and health insurance market well either, particularly after the passage of the Affordable Care Act. The antiquated military retirement model does not fit today's force either, and should evolve to reflect the demands being placed on today's military personnel. The time to fix these issues is now, while we still have the nation's attention focused on issues affecting veterans and military personnel, and still feel grateful for what the Shooter and his teammates did on a dark night in Abbottabad.

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National Security

Laying Down the Law

Why Obama's targeted killing is better than Bush's torture.

Last week's leak of a Justice Department "white paper" purporting to justify the remote-controlled drone killing of an American citizen without charges or trial raised anew the question whether President Obama's counterterrorism policy is more a continuation than a refutation of his predecessor's controversial and much-criticized approach. Peter Baker wrote in the New York Times that President Obama has "embraced some of Mr. Bush's approach to counterterrorism." Notre Dame Law School Professor Mary Ellen O'Connell compared Obama's authorization of drone strikes to the Bush administration's secret memos authorizing the CIA to subject terror suspects to waterboarding and other abusive interrogation tactics. John Yoo, author of the Bush administration's initial "torture memos," got into the act himself, contending in the Wall Street Journal that drone strikes "violate personal liberty far more than the waterboarding of three al Qaeda leaders ever did."

But claims that Obama is channeling Bush are grossly exaggerated. While both chose to use military as well as law enforcement measures to respond to the threat posed by al Qaeda, there is a world of difference between the approach Bush took to war powers and that taken by President Obama. Where Bush treated the law as an inconvenient obstacle to be thrust aside in the name of security, Obama has sought to pursue al Qaeda within the framework of the laws of war. Many of Obama's policy choices deserve criticism, to be sure. And his reliance on secrecy is particularly disturbing. But to paint the two leaders with the same brush is to miss the difference between a leader who seeks to evade the law, and one who seeks to abide by it.

There are certainly disquieting parallels between the authorization of drone strikes and the authorization of torture. Both relied on secret Justice Department memos that redefined terms in ways that defy common sense. Where the torture memo said that only pain of the intensity associated with "organ failure or death" constituted torture, the drone memo argues that the United States can kill in self-defense even where no attack is underway or being planned, radically redefining the traditional requirement of an "imminent" attack as only George Orwell could have. Where the torture memo claimed that "enhanced interrogation" was not barred by a federal law against torture, the drone memo argues that killing an American in Yemen with a drone does not violate a federal statute that prohibits killing an American abroad. Both memos were secret until leaked to the press. (Indeed, all of the underlying memos authorizing drone strikes remain secret; the white paper is merely an unclassified summary of one such memo.) And both the Bush and Obama administrations have sought to dismiss any legal challenge to their respective policies by declaring them secret.

But these similarities should not obscure a fundamental difference. Under the laws of war, international human rights, and the U.S. Constitution, torture is never lawful.

The Bush administration sought to institutionalize the infliction of cruelty and torture as a tactic in its "war on terror," in the face of overwhelming authority that it is never a permissible option. Killing, by contrast, is an inevitable if regrettable aspect of war. No law, treaty, or constitutional provision prohibits killing the enemy in wartime, or in self-defense. On the contrary, the Constitution recognizes the authority to engage in war, and the laws of war permit the use of lethal force as long as it satisfies basic requirements of targeting only the enemy, minimizing collateral damage, and the like. Killing in war time by drone is no more or less legal than killing by bazooka, bayonet, or bomb.

Nor is there anything inherently unconstitutional about killing American citizens. President Lincoln authorized the killing of hundreds of thousands of Confederate soldiers, but no one claims that violated due process. If an American were fighting with al Qaeda on the battlefield against us, few would contend that due process bars our soldiers from shooting back at him. There is no dispute that the taking of an American's life must comport with due process, but there are significant questions about what due process requires in a war setting.

Admittedly, there are many disputes about the applicability of the laws of war to a conflict between a state and a nonstate actor, such as al Qaeda, and about the geographic scope of such a conflict where the nonstate actor may operate in a number of different locales, some far from any traditional battlefield. But the point is that they are difficult and unresolved questions; by contrast, there is no question about the legality of torture.

Thus, where Bush sought to rationalize a universally proscribed war crime, Obama is seeking to chart an appropriate legal course in a new setting of a well-established and generally lawful military tactic: killing the enemy.

Bush's modus operandi was to evade the law -- by keeping detainees beyond our borders where it argued, the law did not reach; by holding some in secret prisons away from the prying eyes of even the International Committee of the Red Cross; by arguing that no judicial review extended to any of them; by treating the Geneva Conventions as "quaint" and inapplicable; and by asserting his power as commander-in-chief to override any law that he deemed inconvenient when "engaging the enemy." His administration seemed to see law, almost as much as it saw al Qaeda, as the enemy.

By contrast, President Obama has insisted since day one that he will fight within the confines of the rule of law. He closed the CIA's secret prisons, forbade "enhanced interrogation," confined interrogation to that permitted by the Geneva Conventions and the Army Field Manual, pursued all domestic terrorism cases through the civilian criminal courts, rejected the notion that the commander-in-chief can ignore laws he does not like, and vowed to close Guantanamo. He has been unable to follow through on the last promise, but this is largely owing to congressional opposition. In his May 2009 speech on national security, Obama insisted that he would fight terror while remaining true to our values and the rule of law. And he hasn't just said so in speeches. When a three-judge panel of the Court of Appeals for the D.C. Circuit in 2010 ruled that the international laws of war did not constrain the president's detention powers, President Obama took the virtually unprecedented step of telling the court that it had granted him too much power. He maintained that his detention authority was constrained by international law, and the Court en banc agreed, rendering that part of the panel's decision nonbinding dicta.

Much of the continuing controversy over Obama's counterterrorism policy stems from underlying disagreements about the propriety and scope of the war. If one takes peacetime as a baseline, the use of lethal force and military detention rather than criminal processes to deal with terrorism is entirely unacceptable. In times of peace, we prosecute terrorists, accord them fair trials, and incarcerate them only upon conviction. In times of war, by contrast, we can detain and kill the enemy's fighters without trial. So if one disputes the propriety of our war against al Qaeda, then all the military means Obama has deployed are problematic. If, by contrast, one concedes that we remain at war with al Qaeda -- see, for example, the boots on the ground in Afghanistan -- then the use of military means, such as killing and detention, ought not to be controversial, so long as they comport with the laws of war. Can anyone really object to the use of a drone, for example, to kill an al Qaeda operative on the battlefield in Afghanistan?

A more nuanced -- and credible -- critique of Obama would acknowledge that for the moment we are at war in Afghanistan, but maintain that the existence of that conflict should not justify the use of lethal force or other military measures thousands of miles away, in Yemen or Somalia, where we are not at war, and where the groups we have targeted did not even exist when al Qaeda attacked us on 9/11. Not all uses of military force beyond a battlefield are impermissible. In World War II, we captured enemy soldiers far from any battlefield, and no one suggested we could not do so. And if a nation faces a truly imminent threat of attack, it may use lethal force as a last resort in self-defense, even if the threat comes from nowhere near an active battlefield. But whether and to what extent lethal force may be used in Yemen or Somalia is deeply controversial, even if one accepts the existence of an ongoing armed conflict with al Qaeda.

That controversy is fueled by the unacceptable level of secrecy with which the Obama administration has shrouded its drone program. The leaked white paper gives us the most detail yet on the program, but it still leaves many crucial questions unanswered. Should the president ever be able to kill American citizens without acknowledging that he has done so, or does due process forbid the killing of one's own citizens in secret? Can deliberate killing of noncitizens go unacknowledged, or does that violate the prohibition on "forced disappearances"? What procedures and standards of proof are employed to ensure that those targeted for drone strikes are in fact fighting for al Qaeda against us? What is the appropriate definition of "associated forces"? How does the ease of killing with a drone affect the assessment of whether capture is feasible, as capture will always entail more risk to Americans? Is it permissible to treat all al Qaeda leaders as presumptively presenting an "imminent" threat justifying lethal force in self-defense, or does that violate the purpose of the imminence requirement, namely to ensure that lethal force is a last resort? Why shouldn't a court or some other independent entity provide oversight, before and/or after the fact, to ensure that the standards are being adhered to in practice?

These questions will continue to dog the Obama administration as long as it keeps its program largely under wraps. Killing in wartime, unlike torture, is sometimes permissible. Asserting and exercising the power to use lethal force against enemies in a war should not be confused with asserting and exercising the authority to torture. But drones raise new and difficult questions, because they make it possible to kill far from any battlefield, without putting American lives at risk, and in stealthy and deniable ways. These questions deserve full and deliberate consideration in a democracy. If President Obama is committed to fighting terror within the rule of law, he needs to be much more transparent about his exercise of this power.

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