Thursday, November 13, 2003

Did Iraq plan to fight a guerilla war all along?

Vernon Loeb and Tom Ricks suggest in Thursday's Washington Post that the Iraqi plan all along might have been to fade away in the face of the American-led onslaught, and to launch a 4th generation guerilla offensive with Iraqi troops and weapons not used to fight the Americans on the open field of battle. If true, the Iraqis are running a classic play from the insurgency playbook. As Mao wrote more than 50 years ago, the reed should bend with the wind and then snap back up again. In this case, the Iraqi reeds bent down low while American armored vehicles swept through the country, and have now begun to snap up as guerillas where they can inflict the maximum potential damage on America's efforts to build a new Iraq.
Knowing from the 1991 Persian Gulf War that they could not take on the U.S. military with conventional forces, these officers believe, the Baath Party government cached weapons before the Americans invaded this spring and planned to employ guerrilla tactics.

"I believe Saddam Hussein always intended to fight an insurgency should Iraq fall," said Maj. Gen. Charles H. Swannack Jr., commanding general of the 82nd Airborne Division and the man responsible for combat operations in the lower Sunni Triangle, the most unstable part of Iraq. "That's why you see so many of these arms caches out there in significant numbers all over the country. They were planning to go ahead and fight an insurgency, should Iraq fall."

In an interview Wednesday at his headquarters northwest of the capital, Swannack said the speed of the fall of Baghdad in April probably caught Hussein and his followers by surprise and prevented them from launching the insurgence for a few months. That would explain why anti-U.S. violence dropped off noticeably in July and early August but then began to trend upward.

* * *

Lt. Col. Oscar Mirabile, a brigade commander credited with running a sophisticated and largely successful security operation in the Sunni Triangle town of Ramadi, agreed that the Baathist attacks were long planned.

"He released criminals out onto the streets," said Mirabile, a Miami police official and former homicide detective who commands the 1st Brigade, 124th Infantry Regiment of the Florida National Guard, which has been operating in Ramadi since May. "Why would anybody do that? Saddam knew he couldn't win a war head to head against coalition forces. He was setting the stage for what you're looking at right now."
Analysis: I think this article is dead on. The longer the Iraqi insurgency goes on, the more sophistication it demonstrates, and the more and more it looks like a concerted, planned, resourced effort to fight the U.S. with asymmetric means. This is no ad hoc insurgency thrown together by amateurs. Recent operations against the UN compound, the American "green zone", and other locations have shown that we are facing a well-led and well-resourced enemy with substantial intelligence and a relatively coherent operational plan.

However, it does not look like we face a hierarchical, centrally-planned and controlled enemy force. Instead, it looks like the Iraqis issued mission-style guidance to their subordinates sometime back in March or April. At a certain decision point -- the "tipping point" of American success -- the Iraqi command probably decided to activate this branch plan and fade away to fight asymmetrically. The Iraqi army cached war materiel and established a network of insurgent cells around the country -- possibly mirroring the former Iraqi Army command structure. The result is a highly decentralized, cellular, insular network of enemies that cannot be decapitated or stopped by the excision of a single cell. Indeed, this type of enemy presents itself much like the Hydra of mythological lore -- when you cut off one head, another grows in its place.

This type of Iraqi insurgency does not preclude the possibility of foreign terrorists operating inside Iraq. Indeed, this operational construct would embrace such a possibility. In the threat doctrine promulgated by the Army's intelligence community, the enemy almost always embraces some sort of terrorist or paramilitary organization to do its "wet work", and to conduct sensitive or political operations beyond the capability of its conventional forces. In the instant case, it appears that the Iraqi insurgent networks have incorporated at least some aspects of Ansar Al-Islam or Al Qaeda -- if only by embracing those groups operational doctrine and expertise. (See this LAT piece by Esther Schrader on that threat) The recent simultaneous suicide bombings, mortar and RPG attacks illustrate these common tactics, techniques and procedures. But the jury's still out as to whether Al Qaeda or Ansar Al-Islam is actually conducting operations inside Iraq.

Bottom Line: If the intel picture painted by Loeb and Ricks is shared by CFLCC and CENTCOM, it could explain the recent statements by LTG Sanchez and GEN Abizaid that they plan to resume offensive operations in Iraq. Last night, the 1st Armored Division (among other units) launched a new operation in Iraq directed at destroying this nascent insurgency. It could also explain Paul Bremer's visit to the White House this week. Fred Kaplan and Josh Marshall both seem to think that nation-building operations are about to take a back seat to a new phase of combat operations. If it's true that we're facing a planned Iraqi insurgency of this magnitude, that may be the right thing to do.

Update I: The insurgency may be working in at least one sense: it's isolating America from our allies and keeping a number of nations from sending troops to Iraq. Korea has stalled its deployment of a brigade to support the American-led occupation of Iraq, and now Japan has balked too. The deteriorating security situation in Iraq continues to deter nations who are interested in nation building -- but unwilling to incur casualties -- from joining our effort in Iraq. At this rate, the Iraqi insurgency may succeed simply by exhausting the American military's force structure (we can't occupy Iraq indefinitely with our current force structure) and preventing our allies from helping out. Of course, a political change in the U.S. could change this calculus, particularly if a committed multilateralist like Wes Clark were elected. But this appears to be the Iraqi end game: inflict casualties and cause chaos for as long as it takes to exhaust America.

Update II: GEN Abizaid, the CENTCOM commander, estimates that America faces roughly 5,000 insurgents in Iraq, according to the LA Times. The CENTCOM commander also paints this fight in terms very similar to those in the Ricks & Loeb piece quoted above:
"The goal of the enemy is not to defeat us militarily," Gen. John Abizaid said at a news conference in Baghdad today. "The goal of the enemy is to break the will of the United States of America, to make us leave."
. . .

"People will say, 'Well, that's a very small number," Abizaid said. "But when you understand that they're organized in cellular structure, that they have a brutal and determined cadre, that they know how to operate covertly, they have access to a lot of money and a lot of ammunition, you'll understand how dangerous they are."
. . .

In order to defeat the guerrillas, the general said the key is gathering information so U.S. forces can preempt their plans to "split the coalition." But Abizaid said he agrees that U.S. plans in Iraq ultimately will succeed.

"There is no doubt in my mind that with patience, perseverance and courage," he said, "we will see this thing through."
Right. The question presented by this latest escalation in violence is whether tactical actions by the Iraqi insurgents will inflict such losses so as to diminish the American public's "patience, perseverance and courage". This, in turn, will create political pressure to minimize casualties at the cost of mission accomplishment, placing the imperative of force protection over mission accomplishment. Over time, this will translate into political pressure to withdraw from Iraq entirely. The only way to forestall that strategy is for the White House to justify these sacrifices to the American public. In Churchillian fashion, we must let our enemies know that we will pursue victory at any cost. Only then will the Iraqi insurgency's strategy fail.

Update III: Another tea leaf has been uncovered today that points toward the resumption of major combat operations in Iraq. According to ABC News, GEN John Abizaid has directed CENTCOM to deploy a major headquarters element to Doha, Qatar, where GEN Tommy Franks operated during the war earlier this year.
By moving his headquarters back to Doha, Qatar, Abizaid will be able to move in and out of the war zone, making it easier for him to keep track of the situation, the sources said. He will also be in the same time zone, allowing him and his staff to act more quickly on intelligence, the sources added.

Since taking command of U.S. Central Command, which covers the Middle East, in July, Abizaid has run the Iraq war from CENTCOM's permanent base in Tampa, Fla.

Abizaid has made frequent trips to the region — a grueling 7,000-mile commute across the Atlantic Ocean. The arrangement will allow U.S. officials more planning and operation capabilities.

Although Abizaid's predecessor, Gen. Tommy Franks, left Qatar on May 1, the day after Bush declared that major combat in Iraq was over, Doha never officially closed as a headquarters. It is considered a "split headquarters," along with Tampa.

The move to Qatar will involve about 400 people on the CENCTOM staff, and they are expected to be there at least two months.

Update IV: The Washington Post reports that the Army has uncovered a large Iraqi weapons cache in Tikrit and captured or killed a number of Iraqi guerillas in its renewed offensive. This appears to be a tactical success, and will certainly help the coalition reverse the deteriorating security situation.

Wednesday, November 12, 2003

The changing definition of American heroism in battle

Tuesday's edition of the Wall Street Journal (subscription required) had an excellent article by Jonathan Eig on the daring wartime exploits of Captain Zan Hornbuckle of the Army's 3rd Infantry Division. The article makes the point that while you've heard of PFC Jessica Lynch -- and probably heard many describe her as a hero -- you probably haven't heard about many heroic warriors like CPT Hornbuckle, whose actions were credited with turning the tide at a key point in the battle for Baghdad.
Capt. Hornbuckle's name has never appeared in a newspaper or on television. He has received no book deals, no movie offers, no trips to Disneyland. In September, when he went to see his parents in Tifton, Ga., his mother called the local Holiday Inn and asked the manager to put her son's name -- he goes by Zan -- on the hotel marquee. That has been his most public recognition so far.

He is one of several soldiers who rose to extraordinary heights on the battlefield in Iraq, received honors from the military and returned home to anonymity. Instead, the best-known soldier of the Iraq War is Jessica Lynch, who suffered broken bones and other injuries when her maintenance convoy was attacked. She was rescued from an Iraqi hospital a week later.

The rescue and initial reports -- later discredited -- that the 19-year-old had survived bullet and stab wounds and continued fighting helped make her a celebrity. Stores in her hometown of Palestine, W.Va., sold T-shirts with her name on them. Volunteers planted a new garden in front of her house. Alfred A. Knopf, the publishing house, signed her to a $1 million book deal. "Saving Jessica Lynch," a TV movie about her plight, was broadcast Sunday.

Why did she become the individual celebrated in popular culture and not one of the other men and women who distinguished themselves in combat? The answer lies on the home front as much as on the battlefield.

In World War I, Cpl. Alvin York gained fame for killing 25 Germans and capturing 132. In World War II, Second Lt. Audie Murphy was credited with 240 kills and went on to star in the movie "To Hell and Back," which told the story of his bravery.

Military culture still celebrates the soldier who racks up a high body count. But since the Vietnam War, much of the country has tended to venerate survivors more than aggressors, the injured more than those who inflict injuries.

"People didn't want to view Vietnam vets as heroes," says Army Sgt. Scott Hansen, 56, who served as a helicopter-door gunner in Vietnam and won a Bronze Star with a V for valor for his conduct last year in Afghanistan. "I think people went there to survive -- put in their time and move on."

Many modern war memorials, most notably the Vietnam Veterans Memorial in Washington, don't include guns at all. In the 1990s, Hasbro Inc. marketed some of its G.I. Joe action figures as "Eco-Warriors" who fought the destruction of the environment. These days, when Hollywood makes a war movie, it often focuses on saving American lives -- "Saving Private Ryan," "Black Hawk Down," "Behind Enemy Lines" -- not killing others.

* * *

. . . the military today has some discomfort with the stories of individual soldiers. Asked why the Army didn't do more to publicize Capt. Hornbuckle's feats, Richard Olson, a public-affairs officer for Capt. Hornbuckle's battalion, says the thought never occurred to him. "An aspect of a soldier is that he's trained to kill," he says. "And I don't know that the public is comfortable with that."

"There's a funny shift," says John A. Lynn, who teaches military history at the University of Illinois at Urbana-Champaign. "We want to fight wars but we don't want any of our people to die and we don't really want to hurt anybody else. So Pvt. Lynch, who suffers, is a hero even if she doesn't do much. She suffered for us."
Analysis: I think this story nails it on the head. Our society has changed a great deal since WWI (when Alvin York was called a hero), WWII (when Audie Murphy earned the same title), or even Vietnam. We live in an age when merely serving in uniform sets one apart from the crowd. Survivorship is something which is exalted. We call PFC Lynch a hero even though she did not do anything particularly valorous or heroic in the tragic 507th Maintenance Company ambush, which left her grievously wounded. We call her a hero because of what she suffered through while in captivity. While her acts were certainly courageous, they can be distinguished from the type of heroism and valor demonstrated by CPT Hornbuckle, and prized by warriors throughout the ages.

On some level, every man or woman who serves in uniform is a hero, because they have volunteered to serve in a job that could place them in harm's way. On another level, every soldier, sailor, airman and Marine who deploys to war and does his/her job is a hero. And on a final level, we can certainly exalt those who made the ultimate sacrifice as heroes. But all of these definitions depart from that of warriors throughout history, who have defined heroism as something different; something that goes above and beyond the call of duty.

There are those situations, such as the battle for Objectives Larry, Moe and Curly, or other engagements, where every soldier steps up to perform in a heroic manner. Admiral Chester Nimitz said it best when he said that "[a]mong the Americans who served on Iwo Island, uncommon valor was a common virtue." From what I've read of that terrible island battle, Admiral Nimitz was certainly correct in his assessment. Similar comments can probably be made about other battles, from Little Round Top in 1863 to Shah-i-kot Valley in 2002. But in most situations, I think we lose something when we devalue the word "hero", and use it to describe the masses. Heroes are something special; they provide an inspiration and an example for us. We should keep it that way, and reserve this label for only the most deserving acts.

Tuesday, November 11, 2003

Book recommendation

There aren't many non-fiction books that you can start and finish on a cross-country flight. The War on Our Freedoms: Civil Liberties in an Age of Terrorism is one of them. Despite the ominous title, this is not a series of tirades against John Ashcroft or the Bush Administration -- it's a series of moderate, well-written, well-researched essays in each aspect of the legal war on terrorism. I liked it so much that I plan to assign it for my class on American Law & Terrorism next quarter. If you're looking for a one-stop-shop book that covers everything from the USA PATRIOT Act to FISA to 18 U.S.C. 2339b, this is it.

Air Force sends forward non-capital charges against Gitmo interpreter

Senior Airman Ahmad I. Al Halabi will face non-capital charges before a general court-martial at Travis Air Force Base in California, according to the Air Force. Some of the charges were dismissed against Airman Halabi. The most important part of this news release is that the Air Force will not seek the death penalty for Airman Halabi, as it theoretically could have done under the UCMJ articles for espionage and aiding the enemy.
Charges referred include seven specifications alleging the accused failed to obey a lawful general order or regulation in violation of Article 92 of the Uniform Code of Military Justice (UCMJ); one specification alleging the accused aided the enemy in violation of Article 104; four specifications alleging espionage in violation of Article 106a; five specifications alleging the accused made false official statements in violation of Article 107; two specifications charged under Article 134 alleging the accused willfully retained documents without authority in violation of 18 U.S.C. 793; and one specification charged under Article 134 alleging the accused executed a fraudulent credit application scheme in violation of 18 U.S.C. 1344.

Charges against Senior Airman Al Halabi that were dismissed include four specifications alleging the accused failed to obey a lawful general order or regulation in violation of Article 92; one specification alleging the accused aided the enemy in violation of Article 104; four specifications alleging the accused made false official statements in violation of Article 107; and one specification charged under Article 134 alleging a violation of 18 U.S.C. 793.
* * *
Senior Airman Al Halabi was on temporary duty at Guantanamo Bay (GTMO), Cuba, for nine months serving as a translator at the time of the alleged offenses. He was apprehended at Jacksonville Naval Air Station, Fla., July 23, and was transported to his home station, Travis AFB the next day. He is currently being held in pretrial confinement at Vandenberg AFB, Calif.
Analysis: Despite the dismissal of certain charges and command decision to forgo the death penalty, I still think these are serious charges. Airman Halabi may still spend the rest of his life behind bars for the crimes he is alleged to have committed. We have no way of knowing -- based on the information that's been made public -- how much damage he did to America's national security at Guantanamo Bay. Presumably, that kind of evidence will be part of the trial in this case, and the members of Airman Halabi's military jury will have to weigh the facts of those crimes in determining whether he should be found guilty or not. Even then, we (the public) may never learn of these facts, if they are considered too sensitive to release to the public that they remain classified for the duration of the trial. We'll see.

1,300 reservists allege job discrimination after demobilization

The Washington Post carries this disturbing report today on complaints filed with the Department of Labor by soldiers who allege discriminatory treatment by employers upon their return from duty. Mobilized reservists enjoy the protection of two major laws -- the Soldiers and Sailors Civil Relief Act, and the Uniformed Services Employment and Reemployment Rights Act. More than 1,300 reservists have filed complaints with the Department of Labor saying their employers may have violated those laws, up from 900 in 2001.
Concerned about the rise in complaints, Labor Secretary Elaine L. Chao has released a televised public service announcement reminding employers that they must reinstate workers called to military duty. "They did their job -- now let's do ours," Chao says.

Under a 1994 law, it is illegal to discriminate against military personnel mobilized for duty. Returning personnel are supposed to be allowed to return to their same, or a comparable job, complete with any pay raises or promotions they might have otherwise received if they had remained at work.

The United States has become increasingly reliant on National Guard and reserve forces, which now make up about half of the U.S. military personnel in Iraq. Since Sept. 11, 2001, 306,000 Reserve and Guardsmen have been mobilized, including about 163,000 now on active duty.

For the most part, employers across the country have been generous in dealing with their National Guard and reserve employees, officials said. Hundreds of firms have begun making up the pay difference between their military and civilian pay, according to Employer Support of the Guard and Reserve, and many offer health benefits as well.

In about one-third of the cases filed in the past year, reserve and guard personnel said they missed out on jobs and promotions as a result of their mobilization, and about 20 percent said they weren't reinstated in their jobs. The rest of the cases involve vacation, seniority and pension issues, Labor Department officials said.

The department referred 79 of the cases to the Department of Justice for possible civil prosecution. A Justice spokesman said the department couldn't determine whether any lawsuits have resulted from the recent complaints. The U.S. attorney in Denver has filed two lawsuits on behalf of National Guard and reserve forces in the past six months.
Analysis: These two laws provide a lot of protections for active-duty and reserve soldiers, including protection from creditors and employers while overseas. But the protection is imperfect, as this story illustrates. The USERRA in particular contains loopholes through which employers can restructure themselves to eliminate jobs, or take other measures which have an adverse impact on the soldier. At the end of the day, our soldiers pay a heavy price for their decisions to serve in the military, especially those with jobs in the private sector. If we want reservists who are able to make a good living as civilians and serve their country as part-time warriors, we need to take a hard look at these legal protections and see if they need adjustment for today's reservists. The laws were written at a time when a major mobilization was only expected in the case of another world war -- that's no longer the case. Today's reservist must live with constant mobilizations, and I think these legal protections are probably insufficient for that situation.

Veterans taking care of veterans

The Washington Post carries a moving report this morning about a group of older veterans of past wars who have taken it upon themselves to greet American soldiers coming home on leave from Iraq through Baltimore-Washington International airport. Many of these men are Vietnam veterans who want to ensure that these men face a better homecoming than they received.
"Welcome back. Good to have you home," said Bill Self, a Vietnam War veteran, extending his hand to each soldier arriving for two weeks of home leave. Beyond him, a second line of veterans was waiting with telephone cards allowing the soldiers to make free calls across the country.

At the end of the gantlet stood Ray Shipley, 75, a Korean War veteran from Bowie who served in both the Army and Air Force. He knew that every second of leave is precious and wanted to make sure the soldiers didn't waste it sitting in an airport. Like the old buck sergeant he is, Shipley hurried them off to the appropriate ticket agent.

"They only have 15 days, and that time starts as soon as they get off the airplane," he said.

He spotted a soldier dragging a green duffle bag. "Hey, sarge, come on over here. Welcome home, buddy. Where you going? . . . Chicago? See the man here. He'll get you there in a couple of hours -- or less."

With polls showing rising doubt at home about the wisdom of the Iraqi war, the veterans who show up every morning to greet the troops at Baltimore-Washington International say their mission is to make sure the returning soldiers know that they still have the support of Americans.

"These guys are fighting over there, and there are all these arguments. Somebody should tell these guys, 'Hey, you're fighting for us, and we appreciate it,' " Shipley said. "It's not their fault that we get in the predicaments that governments put us into."

It is a lesson some of the veterans know well. Self is a former Navy corpsman who served with the 3rd Marine Division in Da Nang in 1965 and 1966.

"I went through the same thing in Vietnam," Self, 74, said. "There wasn't anyone to see me when I got home, so we're here to make sure that doesn't happen again."

Older veterans who hold their own

The Los Angeles Times has an interesting article this morning about a couple of older gentlemen serving in the Florida Army National Guard -- and now fighting in Iraq. Warfare has historically been a young man's endeavor, largely for the physical toll it exacts on the body. But these men are proving that they're tough enough to hang in there.
A few days ago, resting on his cot after a nighttime patrol in the brutal streets of Baghdad, [Sgt. James] Flores, a grandfather, sat bolt upright: "It hit me all of a sudden. I said, 'Oh, Lord, I turn 50 tomorrow.' I never thought in my lifetime that I'd be at war at that age."

With his birthday, which he celebrated on another patrol, Flores dashed the notion that war belongs to only the young and joined a minority of servicemen and women who, at 50 and above, have gone to battle.

Fewer than 1% of U.S. troops are in the 50-to-59-year-old bracket, which makes up 12% of the nation's population.

While it is not unusual for senior officers and noncommissioned officers to achieve "senior citizen" status in the military — Lt. Gen. Ricardo Sanchez, commander of coalition troops in Iraq, is 52 — Flores is still one of the foot soldiers, pulling guard duty, eating MREs, staying in shape and, as best he can, thinking young.

"To tell you the truth, I don't see much difference between what I do and what a 19-year-old does," said Flores, who works two jobs as a cook back home in Kissimmee. "I passed the annual PT [physical training] test, and I saw some 22-year-olds who couldn't. That made me feel really proud."
* * *
In Iraq, Staff Sgt. Paul Stevens, 52, thought for a moment about his age, then said, "Well, some people tell me I may be the oldest squad gunner — machine gunner — in the infantry." He quickly added that he relished duty with the Florida National Guard here.

"This is why I stayed in the reserves," said Stevens, who's in Iraq with Charlie Company, 2nd Battalion, 124th Infantry. "To serve. It's an honor for me to serve at this age."

A two-tour Vietnam veteran who rejoined the military after 13 years as a civilian so he could fight in the 1991 Persian Gulf War, Stevens knows Charlie Company's younger soldiers view him with a touch of awe.

"The way this thing is going," said a 19-year-old specialist eyeing Stevens, "I may be as old as he is by the time I get out of Iraq."

"We figured we'd be guarding a Patriot site or something," Stevens said. "But we got lucky and got assigned to the Special Forces, training in Jordan for pilot rescue. It was a lot of night training. The terrain was terrible, like walking on the moon. You'd fall over stones, hit the ground, roll and get up and go on. With my machine gun, 600 rounds of ammunition and body armor, I figure I was carrying 80 or 100 pounds.

"Sometimes I was really hurting. But the younger guys were hurting worse. Some of them broke and had to drop out. I never got to that point. Sure, the younger guys kind of joke about my age. But that doesn't bother me at all. I think it's pretty cool. Just like I think it's pretty cool we crossed the berm into Iraq two days before the war started."

Veterans Day message from Intel Dump

Veterans Day is always a solemn occasion to reflect on and to show our gratitude for those who have fought to preserve the freedoms all Americans enjoy today.

This day was designated as "Armistice Day" after World War I to pay tribute to those who served in that war. This holiday was originally commemorated on the 11th hour of the 11th day of the 11th month to mark the anniversary of the agreement which ended WWI. In 1954, the day's significance was expanded by Congress to honor all the soldiers, sailors, airmen, Marines, coast guardsmen, and merchant marines who have worn our Nation's uniform. By pausing to remember, we recognize the many diverse and difficult circumstances that our Veterans have faced. However, no matter what the time or the uniform, they are united by the same ideals: life and liberty, peace and prosperity, service and sacrifice.

There are currently more than 25 million living American veterans, many of whom put their lives on the line to preserve our freedoms. Through each of these challenges, the members of the Army, Navy, Air Force, Marines, and Coast Guard have protected our country and liberated millions of people around the world from the threats of tyranny and terror.

On the observance of Veterans Day in 1954, President Dwight D. Eisenhower called on all citizens to not only remember "the sacrifices of all those who fought so valiantly..." but also to rededicate themselves "to the task of promoting an enduring peace...." Today, almost 50 years later, we remember the dedication of our veterans, and resolve ourselves to upholding their legacy of justice, liberty, and opportunity for all.

I ask that you set aside a moment this Veterans Day to remember the service and sacrifices of American veterans, past and present.

(I cobbled this message together from past messages sent by the President and JCS Chairman to send to the UCLA law school student body and faculty.)

Monday, November 10, 2003

Supreme Court grants cert to Gitmo cases

The AP reports that the U.S. Supreme Court has agreed to hear a pair of cases arising from America's detention of more than 600 men at Guantanamo Bay, Cuba. They are currently held there as "unlawful enemy combatants", just outside the reach of the 3rd Geneva Convention, but with most of the humanitarian protections found in that document. The narrow question presented by these appeals is whether U.S. courts have jurisdiction to hear the appeals from these men.
The appeals came from British, Australian and Kuwaiti citizens held with more than 600 others suspected of being Taliban or al-Qaida foot soldiers. The court combined the appeals and will hear the consolidated case sometime next year.

Lower courts had found that the American civilian court system did not have authority to hear the men's complaints about their treatment.

"The United States has created a prison on Guantanamo Bay that operates entirely outside the law," lawyers for British and Australian detainees argued in asking the high court to take the case.

"Within the walls of this prison, foreign nationals may be held indefinitely, without charges or evidence of wrongdoing, without access to family, friends or legal counsel, and with no opportunity to establish their innocence," they maintained.

The men whose names are on that case do not even know about the lawsuit, lawyers from the New York-based Center for Constitutional Rights told the court. The lawsuit brought on their behalf claims they are not al-Qaida members and and no involvement in the terrorist attacks of Sept. 11, 2001.

The Bush administration replied that a lower federal appeals court properly looked to a Supreme Court case arising from World War II to determine that foreigners held outside the United States cannot bring the kind of court challenge at issue now. The 1950 case said German prisoners detained by the United States in China had no right to access to federal courts.

The Guantanamo base is a 45-square-mile area on the southeastern tip of Cuba. The land was seized by the United States in the Spanish-American War and has been leased from Cuba for the past century. The lease far predates the communist rule of Fidel Castro.

The U.S. Court of Appeals for the District of Columbia had rejected the detainees' claim that Guantanamo Bay is under the de facto control of the United States, even though it remains a part of Cuba.

Solicitor General Theodore Olson, whose wife was killed aboard the plane that crashed into the Pentagon on Sept. 11, told the court that the prisoners' lawsuit has great "potential for interference with the core war powers of the president."

President Bush (news - web sites) has recommended that six of the Guantanamo detainees, including Australian David Hicks, be the first to face military tribunals established for the global war on terror.
Analysis: As with nearly every Supreme Court case, the real issue is whether the Court will decide this case narrowly or broadly. If the court rules narrowly on the jurisdictional question alone, that may not necessarily derail the Bush Administration's legal strategy for dealing with detainees in the war on terrorism. Moreover, such a narrow legal ruling might not affect the detentions of U.S. citizens at U.S. military prisons, such as Jose Padilla. However, if the Court decides to issue a sweeping decision (a'la Lawrence v. Texas) addressing all aspects of the war on terrorism, then I think this could be significant. In this decision, the Court will have the opportunity to hear and address many aspects of the war on terrorism, and the larger question of balancing liberty with security. If the Court takes the opportunity to address those larger questions, then this could really be a monumental decision.

What are the odds that they'll do that? I don't know. But my hunch is that the Court will seize this opportunity to issue a decision larger than the facts of this case. In a Q&A; session I attended last year at the Reagan Library, Justice Anthony Kennedy hinted that he felt such issues would ultimately be decided by his court. Also, there appears to be a circuit split growing between the 2nd Circuit and 4th Circuit on the issues of unlawful combatants and access to counsel, among other issues. The law in this area is somewhat messy and outdated, and the Court may want to clarify its precedent for lower circuits. In the end, I still can only make an educated guess, but I think the court will issue a broad holding in this case when they ultimately decide it.

Will Justice Rehnquist have to recuse himself from this vote? I'm not all that clear about the rules of judicial conduct as they apply to justices of the Supreme Court. But there is an argument to be made that the conservative Chief Justice might have to step down for this case because of his past writings on civil liberties in wartime. Justice Rehquist is the recent author of All the Liberties But One: Civil Liberties in Wartime. To some extent, I think his research and writing in this area reveals some bias on the issue, and his bias appears to be against the petition in this case. If Justice Scalia recused himself for his remarks on religion and the state, then I think there's at least an argument to be made that Justice Rehnquist should recuse himself on this case. We'll see.

Update I: Robert Greenberger and Jess Bravin of the Wall Street Journal (subscription required) correct one of my statements about the breadth of this decision to grant cert. The Supreme Court will only look at the narrower question of whether the courts have jurisdiction to hear petitions from prisoners detained at Guantanamo Bay. The Court's order limits the case to "[w]hether United States courts lack jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba."
In accepting the case, the Supreme Court limited its review to whether federal courts have any jurisdiction over Guantanamo, rather than some of the broader legal issues raised by the detentions. Mr. Ratner said the court may "look at this as a Guantanamo vs. Bagram question," referring to the Afghan military base where the U.S. also detains and interrogates suspected terrorists.
So...we're not likely to get a major decision about the balance between liberty and security, or something which might apply to the Padilla and Hamdi cases. However, this decision will certainly impact the American decision to detain men at Guantanamo Bay. Suffice to say, it would be a major complication for the administration if prisoners there were allowed to bring suit in federal court to challenge their detention. My prediction echoes that made by Eugene Volokh -- the Court will likely follow Johnson v. Eisentrager and hold that enemy combatants outside the United States do not have the right to petition for habeas corpus in U.S. courts. But this case could easily go another way.

Update II: The Washington Post's article on the Supreme Court's decision to hear this case has a couple of interesting links on the right side of the page:
* Defendants' Web Site
* Guantanamo Bay Defendants
* Kuwaiti Detainees
To which I'd like to add the Pentagon's official site for Military Commissions, and the Findlaw.Com repository of documents from the war on terrorism. The latter is probably the best repository for primary legal documents on terrorism.