Saturday, July 31, 2004

moot battle

I don't close with and destroy the enemy physically anymore. Now it is mental combat. Here is a description I wrote for my school paper of a moot court competition I was in a few months ago. Moot court is an appearance before a panel of judges where you discuss a fake case. The case presents a really intricate question of law that can be decided either way depending on how you present it - there is no right or wrong answer. The judges throw questions at you and try to rattle you. They usually succeed. Your reasoning ability and presentation is graded, and winners are announced. It is pretty prestigious at law school, especially if you want to be a trial lawyer like me. My school name and the names of my team-members are changed to protect the innocent.

This year, for the first time in 18 years, "X" School of Law (a top-20 law school in Southern California) fielded a team in the Philip C. Jessup International Moot Court Competition, widely recognized as the largest and most prestigious moot court competition in the world. I was on this year’s team, along with my fellow team-members A, B, and C. This year’s problem was a dispute between two fictitious countries before the International Court of Justice in the Hague involving war crimes and the new International Criminal Court. We had to research the problem and prepare a brief for each side. We started work in earnest in October, and submitted two 36-page briefs in January. We then began preparing for the oral rounds.
We flew to Lubbock TX and the campus of Texas Tech University to represent X Law school before the best and brightest other schools had to offer. Let the Brain Olympics begin!

When we got off the small airplane we were overwhelmed with the smell of cow… manure is a good word, I’ll use that. Lubbock is a small town with a very different culture from LA. Flat. I mean somebody ironed it flat. Anti-smoking ads informed us that 70% of Texas Tech students use tobacco products. 70%?!? The law school lounge proudly displayed posters advocating for both political parties – Republicans and the Federalist Society. On the TV in the airport Sen. Kerry was talking, and a man said loudly “Scary Kerry.” The crowd nodded approvingly at the brilliant political commentary. That pretty much summed it up – it was George W. country all the way. But, even though we were heathens from liberal Los Angeles everybody was very nice. I hope that anybody from Lubbock who visits LA gets half as nice a welcome as they gave to us.

Texas Tech ran the competition as smoothly as any competition could be run. The assistant dean, a man named Richard Rosen, picked us up and personally drove us to our hotel. It turns out he had just retired from the JAG corps of the US Army, where he was the Commandant of the Army’s JAG school. Those who know me understand how I quickly made a friend for life. We knew many of the same people and talked Army while A, B, and C rolled their eyes in boredom. It also turns out the Dean of Texas Tech retired after serving as the Judge Advocate General of the US Army. Together they procured judges well versed in international law for the competition – 2 former deans of the JAG school, a former staff judge advocate for special operations command and from the 4th Infantry Division, and many other noted international law practitioners and scholars.

The competition itself was intense. Teams were from Stanford, UCLA, UNLV, Arizona State University, Kansas University, Oklahoma City University, Southern Methodist University, Southwestern, University of Arizona, University of New Mexico, University of Oklahoma, and the University of San Diego. San Diego casually mentioned that they had been practicing four times a week for three hours at a time. Oh man. Most schools had their faculty coaches travel with them. Ours didn’t travel with us… uhh, we didn’t have one. Some of the students were in a class called Jessup. It’s a class? Wow. All of the competitors were well-prepared and well-supported. We were on our own, and did the best we could, but were disheartened to learn that one of our briefs was docked 5 points on a technicality (no “questions presented” section). Ouch. A faculty coach really would have helped. Well, it is our first time and we did the best we could.

The other teams spent the night before the first round feverishly reviewing their notes. We, of course, went to the hotel bar – called the “Recovery Room” because it was down the street from a hospital. Very tacky place – just right for us. C bought the first round – four 22-oz “Shinerbock” beers. Shinerbock is actually pretty decent, by the way. If you are ever in TX, don’t tell them you are a liberal, and order a Shinerbock. You’ll be alright. Anyway, C ordered the beer and then turned to us in amazement and said “Seven dollars.” Now, I admit that LA is pretty expensive, but $7 for a beer is too much even here. To be charged $7 a draft beer in Lubbock? No damn way. I’ll take my money and – “No” said C. “It’s $7 for all four beers.” Wow again. Lubbock suddenly was a lot more interesting. We studied late into the night, and A created the “ICC” rap. Don’t ask. And especially don’t ask her – she’ll recite it for you. Again and again and again. The only other “Jessup” people there were from the University of Kansas. They seemed as relaxed as us. We were pretty relaxed because we knew we would be the best team X Law School had entered in 18 years, even with the 5-point penalty. See the first line of this article if you think I sound arrogant.

The next day we had one round – and it was tough. 45 minutes a side, with 3 well-prepared judges. C went first. He didn’t receive a single question! I sat and watched him continue on, and on, and began to sweat. For those of you who have done moot court, you know that questions are where you shine – you know what the judge thinks is important, and can score points, as well as you avoid the problem most people face in talking that long without questions. It’s tough. C was smooth, professional, and calm. I was freaking out because I knew I could not do that – go before a panel and just talk for 20 minutes without interruption. He did, and he did it well. He sat down and I stood up. About 2 minutes into my section a judge asked a question, and whew, we were in the game. Question-response followed by question. It was great. I am so glad I didn’t go first.

Done for the day, we continued our study at the Recovery Room. $7! And watching a white Texan who called himself “Compton” perform a rap for the crowd was pretty amusing. A repeated her “ICC Rap.” Ugghh. Please please please stop. She, of course, continued. One "cowboy" asked us where we were from. When he heard we were from LA he said "You ain't one of them liberals are you?" I told him I was, always had been, always would be. He glared at me and started mouthing off about wuss this and commie that and I started to get up. I was going to convince him that liberal didn't mean weak, as well as teach him some neat stuff I learned in a Combatives class I took 3 times a week the year I was stationed in the infantry on the South Korean DMZ (I love to teach - I'm so selfless). His friends pulled him out and apologized for him. One said "that isn't how we greet visitors around here." Wow. Lubbock is conservative W country, but I was favorably impressed. Shinerbock made it all ok.

The next day we had three rounds, and again it was hellish – all the judges were smart, well-prepared, understood the problem, knew the facts, and asked really F-ing hard questions. A and B were asked about 50 questions in their second round. At one point B was just starting to answer one question when he was interrupted with another question from a 2nd judge, and while that judge was asking that question the 3rd judge interrupted the 2nd judge with another question, and both of them asked different questions at the same time. All three judges then went silent and waited for him to answer. Damn. He did great though, and answered all three. It’s all about controlling your presentation, and he did – he would answer and in his answer lead the discussion right back to where he wanted to go. He even stopped shaking nervously after the first few minutes. (Don’t laugh unless you’ve done moot court – it IS scary).

That night the four finalists were announced – and we weren’t one of them. Well, we didn’t expect to be. We had no faculty coach, no history of competing, and the other teams were freakishly well-prepared. We consoled ourselves with the fact that we didn’t think we had embarrassed X Law School, and that we did better than last year’s team (see the first line again).

We debated whether to go to the movies or to the awards presentation that night, and finally decided it would seem rude not to attend, especially given the incredible hospitality shown by our Texas Tech hosts. So we went. Are we glad we did. Our team won 2nd and 3rd place Best Oral Advocate trophies (I was ALMOST first), and B missed a 5th place trophy by only a few points - he was 6th but no trophy for that . We had 3 in the top six! We missed being one of the final four by – you guessed it – five points. 5 no ‘questions presented’ section” penalty points. If we didn’t have the penalty we would have been in the semi-finals, and given that we were the only team with two people to win awards in the oral competition (and 3 of the top six places) we could have made it to the international round. Well, I don’t care. We made our school look good, and we set the standard for next year’s team – all they have to do is win the whole thing or drop out of school in shame. No pressure. Just victory or death. My new friend Dean Rosen of Texas Tech, US Army retired, would appreciate that language.

That night we – well, you know what we did. $7 for four beers, how could we not. A mentioned that one reason C did so well was rehearsal – she heard him rehearsing his argument while he was in the shower in the hotel. C was embarrassed, and we laughed our butts off. And we met the team from San Diego – they were awesome, and not just because they bought us drinks and told us how great X Law School is and how they wanted to go there but didn't get in, but because they were really nice people too. It rained, and we got mud all over us. I know why they say “don’t mess with Texas.” It is because you don’t want to get Texas on you – it is hard to wash out. The next day we spent 8 hours doing absolutely nothing and flew home. We were glad to see Kansas win the regional and move on to the international round – Shinerbock helps you think. I hope they win the whole thing.

hapless soldier's sigh

my first posting. Hmmm....

If you haven't read MY WAR yet do it now (it is at It is an immediate account of an infantryman in Mosul, Iraq, and the guy really knows how to write.

To get started, here is an editorial I wrote in November 2002, months before we invaded Iraq. See who got it right, me or George W. Bush:

The President has not shown that war with Iraq is morally just. Under the classic “just war doctrine,” a state is morally justified in its use of force if it meets all of the following four factors:
(1) The damage inflicted (or threatened) by the aggressor on the nation or community of nations must be lasting, grave, and certain.
(2) War should be waged only as a last resort.
(3) There must be serious prospects of success.
(4) The use of arms must not produce evils and disorders graver than the evil to be eliminated.

As discussed below, war with Iraq has not met the just war standard.

(1) The damage inflicted (or threatened) by the aggressor on the nation or community of nations must be lasting, grave, and certain. If the facts show that Saddam is close to completion of a nuclear weapon then we should eliminate him. We don’t need to wait and be hit first before responding. His history of chemical weapons use against Iran and his own Kurdish minority demonstrate that he should not be allowed to acquire even more dangerous nuclear weapons. Is there proof that an atomic threat from Iraq is imminent? We simply don’t know. We are told that evidence can’t be shared because of “national security.” Such concerns did not stop President Kennedy from laying out his case during the Cuban Missile Crisis. If the United States is to go to war, it had better not do so under false pretenses. The administration needs to lay out its case clearly and unambiguously, just as President Kennedy did. If there really is evidence, then a way can surely be found to show it while protecting the identity of sensitive intelligence sources. This has not been done. Even after secret information was recently shared with Congress many senators and representatives remained unconvinced. No credible information has been shared with the public. Meanwhile, North Korea, which provided Iraq its Scud missiles, has openly admitted to continuing its development of nuclear weapons despite agreeing to stop doing so in 1993. Is there talk of war against North Korea? Strangely, no. Why Iraq and not North Korea?
I am not willing to take it on faith, without evidence, that we must invade or suffer nuclear attack. Retired General Wesley Clark, a former NATO commander, feels the same. He recently testified before the Senate that, "It's a question of what's the sense of urgency here, and how soon would we need to act unilaterally? So far as any of the information has been presented, there is nothing that indicates that in the immediate, next hours, next days, that there's going to be nuclear-tipped missiles put on launch pads to go against our forces or our allies in the region."
On 9/11 we watched in horror as two towers full of living human beings crashed to the ground. Our reaction was normal – we wanted to fight back, to punish the “evildoers.” I felt, and feel, the same. I want Osama dead. So why are we invading Iraq, a secular regime often denounced by Islamic fundamentalists such as Al Qaeda? Iraq did not attack us on 9/11. If Iraq had been behind the attacks, this debate, and Saddam, would already be over. The President’s weak attempts to use 9/11 to justify war with Iraq only point out the weakness of the case. When a president uses half-truths or untruths to justify a war, it is probably a good idea to slow down the march towards conflict. The attacks of 9/11 are unrelated to Iraq, and thus can provide no justification for an invasion.
Saddam and his cronies are evil, and the world would no doubt be better off without them. He has brutally oppressed his own people. That is not a reason to invade Iraq. If that were the test, then we should also invade North Korea, Syria, Zimbabwe, Iran, and arguably Saudi Arabia, Egypt, China, and on and on. Something more is required to provide a just cause for war or the sovereignty of all nations is threatened.

(2) War should be waged only as a last resort. One reason given for war is that Saddam is not complying with UN resolutions. However, Saddam hasn’t complied with UN resolutions for at least a decade. Why the rush to war now? Three retired four-star American generals said recently that attacking Iraq without a United Nations resolution supporting military action could limit aid from allies, energize recruiting for Al Qaeda and undermine America's long-term diplomatic and economic interests. "We must continue to persuade the other members of the Security Council of the correctness of our position, and we must not be too quick to take no for an answer," Gen. John M. Shalikashvili, a former chairman of the Joint Chiefs of Staff, recently testified before the Senate Armed Services Committee. Similar testimony was given by Gen. Clark and Gen. Joseph P. Hoar, a former chief of United States Central Command. The three generals, some of whom warned that a war with Iraq could detract from the campaign against terrorism, said the Bush administration must work harder to exhaust diplomatic options before resorting to military action to oust Saddam and eliminate any weapons of mass destruction Iraq may have. The three generals said a United Nations resolution was important because it would isolate Saddam internationally, give skittish allies some political cover to join any military action and bolster America's long-term global aims. "We are a global nation with global interests, and undermining the credibility of the United Nations does very little to help provide stability and security and safety to the rest of the world, where we have to operate for economic reasons and political reasons," said Shalikashvili.
Now that the President has been forced to obtain a UN resolution calling on Iraq to comply with weapons inspections, he must allow time for the resolution to work. If Iraq complies, then no war is needed. If Iraq does not comply, the threat will be clear and we will have worldwide support for our actions. Why rush to war without such support? The short answer is that there is no need to rush. Make the case, build support, and then if other measures don’t work we will have the moral legitimacy we need before we issue our military a license to kill and put our soldiers in harm’s way. When (if) diplomacy fails we will at least know that we tried. Our soldiers and the innocent noncombatants who will be caught in the middle deserve our best efforts with diplomacy first.

(3) There must be serious prospects of success. Our military is the best the world has ever seen. Success against the Iraqi military is a certainty, and thus the President’s call for “regime change” is bound to happen if we invade. We need to be certain, however, that such a change would result in a safer world. That is the test for success, not removing Saddam. Ralph Waldo Emerson noted that men don’t ride events, events ride the man. The war could (and probably would) have consequences beyond what most of us can predict now. The eminent military philosopher Carl von Clausewitz cautioned that when preparing for war political leaders should never take the first step until they know their last. If war with Iraq is worth U.S. blood and treasure it is worth establishing and articulating a desired political end and a plan for the political consolidation of our military success. We must not take the first step until we have thought our strategy through to the last step, until we understand all the risks and rewards. This has not been done.
The first Gulf War convinced many Americans that war is cheap and easy, with few American casualties. There is an expectation that we can win easily and mostly from the air. If Saddam and his cronies hold out in the cities we will face urban combat, which is much more dangerous both to our military and to noncombatant civilians caught in the middle. It will not be a cheap victory. There is the threat that Saddam, backed into a corner and with nothing to lose, will lash out with weapons of mass destruction such as the chemical weapons he already has. He has already threatened to strike Israel and Israel has already promised to respond, throwing the entire region into even more disarray with unforeseen consequences. General Clark warned that attacking Iraq could divert military resources and political commitment to the global effort against Al Qaeda and possibly "supercharge" recruiting for the terrorist network. It would also cost a lot more national treasure than the first Gulf War. In the first effort in Congress to estimate the fiscal cost of an Iraqi war, Democrats on the House Budget Committee issued a report putting the likely price tag at $30 billion to $60 billion, less than that for the Persian Gulf War in 1991. That war cost about $60 billion, but our allies picked up four-fifths of the costs. The Democrats' estimates do not include the possible costs of a long-term peacekeeping mission or of providing aid. No doubt those costs would be enormous. Would an invasion of Iraq be in our long-term best interests, making the world safer? In short, we don’t know. The case has not been made. Rushing to war without properly considering the risks and rewards is a recipe for disaster, not success.

(4) The use of arms must not produce evils and disorders graver than the evil to be eliminated. If Iraq actually is close to possession of a nuclear weapon then an invasion to eliminate that threat would be the lesser evil, but as I discussed above the President has not, or can not, show that this is the case. I am also concerned about how the President used the threat of war in a partisan manner, just as Republican strategist Karl Rove suggested last year. This threatens the long-term survival of our republic. The response of Mr. Bush to valid questions and criticism by some senators was to question their patriotism. In the recent election Republicans in Georgia ran ads showing the twin towers falling and stating that Senator Max Cleland, who voted against giving Mr. Bush unchecked war powers, did not have the “courage to lead.” Cleland is a combat veteran who lost both legs and an arm fighting in Vietnam. His opponent, who never served in the military, won. Mr. Bush, a National Guard veteran who courageously defended Texas from the Viet Cong while Cleland was fighting in Vietnam, has falsely tried to link Iraq to 9/11, has refused to provide evidence of an imminent threat, has dissipated the worldwide sympathy and support the U.S. enjoyed after 9/11 by not building a case with our allies, and then wrapped himself in the flag when questioned.
Patriotism is the last refuge of a scoundrel. It is ok to question authority – our founding fathers taught us this when they created our republic. I therefore question Mr. Bush’s understanding of our Revolution and our Constitution. If war in Iraq is the right thing for us to do then our President should provide evidence to the American people. He has refused to do this, citing “national security,” and until he does so (if he can) war in Iraq is unjustified. If a “wag the dog” strategy is allowed to succeed it will weaken our system of government, which is a greater threat to our national security than any possible threat from Iraq.

One last note: if we do go to war in Iraq then we are all responsible, even those of us against the war. Do not blame the military for political decisions. When America wages war it is never the generals who decide to do so, but the politicians. Criticism of the war should not be directed at the soldiers, sailors, airmen, and marines that go into harm’s way in the name of the United States. As citizens of a republic we are all responsible for the actions of our military, whether we wear a uniform or not. I hope we don’t go to war. If we do, I will support our soldiers however I can – but not the President.