The AP is reporting that the Supreme Court has issued a decision in Hamdi v. Rumsfeld that effectively gives the President the power to detain U.S. citizens as enemy combatants, but also provides some role for the judiciary.

Update: Via Goldstein & Howe's SCOTUSblog, all three of the terrorism cases were reversed and remanded by the Supreme Court today. Here are the outcomes in the terrorism cases:

Nos. 03-334, Rasul v. Bush, and 03-343, Al Odah v. United States, per Justice Stevens, reversed and remanded [6-3; win for detainees]

No. 03-6696, Hamdi v. Rumsfeld, per Justice O'Connor, reversed and remanded [8-1 decision]

No. 03-1027, Rumsfeld v. Padilla, per the Chief Justice, reversed and remanded [5-4 on jurisdictional grounds]

More to follow...

Update: I originally penned this note under a separate header, but decided to place it here instead.

One of the themes running through the Justice Department and Defense Department torture memoranda is that of plenary Presidential power where matters of war are concerned. Indeed, this power is construed by DOD and DOJ attorneys as a Constitutional value, capable of trumping federal statutes, treaties, and other restraints on presidential power. White House Counsel Alberto Gonzales repudiated this line of reasoning in a press conference last week, saying it was both overbroad and flawed. He promised that DOJ lawyers were hard at work on new memoranda covering the legal terrain of interrogations for the administration.

Lest anyone mistake this point, the Supreme Court decided to weigh in today on the matter. On page 29 of Hamdi v. Rumsfeld, 542 U.S. ____ (2004), Justice O'Connor writes this for the 8-1 majority:

[W]e necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Sheet & Tube, 343 U. S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. Mistretta v. United States, 488 U. S. 361, 380 (1989) (it was .the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty.)

* * *
Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.

(Note: this last part has no citations, meaning this is basically what the justices think about this issue without reference to past decisions. That's a good indicator to me of how strongly the justices feel on this issue.)

The Los Angeles Times reports this morning that Nadia McCaffrey — mother of slain California Army National Guardsman Patrick McCaffrey — has plans not only to allow media photographing of her son's casket as it returns to Sacramento, but to encourage it. In conjunction with the California National Guard, Ms. McCaffrey is planning an honor guard at the Sacramento airport, followed by a motorcade from the airport. All of these ceremonies will be open to the press. Ms. McCaffrey intends this to be a protest against the Defense Department's policy against photographs of flag-draped caskets returning from the war.

"I don't care what [President Bush] wants," Nadia McCaffrey said of the administration's policy that bans on-base photographing of coffins returning from Iraq and Afghanistan.

She planned to hold a short ceremony in front of reporters and photographers inside a Delta Airlines cargo terminal at the airport shortly before Flight 1583 was scheduled to arrive from Atlanta at midnight with the body of her son, National Guard Spc. Patrick McCaffrey, 34.

* * *
Patrick McCaffrey was killed June 22 along with Lt. Andre Tyson, both members of the Santa Rosa-based 579th Engineer Battalion, when the two were ambushed by insurgents near Balad, Iraq.

* * *
Since Sacramento Airport is not a military facility, it is under no obligation to keep the media away. Both the airport and the California National Guard worked Sunday to arrange for the ceremony.

The Pentagon's rules "are specifically for the airlift command, when [the caskets] are on the military plane," said Lt. Jonathan Shiroma of the California National Guard. "This is a commercial jet, so it's a different jurisdiction, so to speak. We cannot stop the media from filming."

Shiroma added that it was the Guard's policy to follow the wishes of the family — sometimes helping keep the media at bay during services, sometimes helping arrange for cameras. A spokeswoman for the airport said that although its security personnel were helping with arrangements, the Guard was performing the majority of the work.

My thoughts: The public has been invited to watch, through the media, funerals of other servicemembers killed in Iraq. Indeed, there have been a number of high-profile funerals held at Arlington National Cemetery where the media have been allowed to watch from close or afar. So this may not be as novel as the Times makes it out to be. Nonetheless, I think it's a poignant way of making the point that I made when I wrote on this subject earlier. These casualties don't belong to the Pentagon or the White House so much as they belong to us — they are our finest sons and daughters. SPC Patrick McCaffrey, though his casket may be shrouded in the American flag, ultimately belongs to his mother and his family. I think that they should have the ultimate say as to how he is respected in death, and I applaud their decision to allow the public to share in his final return. I also applaud the decision by the California National Guard to assist in this ceremony, notwithstanding any of the politics involved. SPC McCaffrey belonged to them too, and this decision shows their commitment to their soldiers over politics.

Some critics will say that Ms. McCaffrey is using her son's death for political purposes. Perhaps — but that is her right. I might not agree with the way that anti-war protesters use casualties to bolster their cause, but I can hardly criticize a mother for seeking to use her son's death as a platform for discussion of the war. This is precisely why we must be circumspect about the decision to wage war — it does have a human cost. We can never forget that, and I think that's what Ms. McCaffrey is trying to remind us of.

The Washington Post reports this morning on a set of decrees from American proconsul Paul Bremer that may, in fact, undermine the very essence of sovereignty for the Iraqis. The orders cover everything from immunity for coalition personnel to the creation of an Iraqi election commission, and for the most part, will stay in place after June 30.

Some of the orders signed by Bremer, which will remain in effect unless overturned by Iraq's interim government, restrict the power of the interim government and impose U.S.-crafted rules for the country's democratic transition. Among the most controversial orders is the enactment of an elections law that gives a seven-member commission the power to disqualify political parties and any of the candidates they support.

The effect of other regulations could last much longer. Bremer has ordered that the national security adviser and the national intelligence chief chosen by the interim prime minister he selected, Ayad Allawi, be given five-year terms, imposing Allawi's choices on the elected government that is to take over next year.

Bremer also has appointed Iraqis handpicked by his aides to influential positions in the interim government. He has installed inspectors-general for five-year terms in every ministry. He has formed and filled commissions to regulate communications, public broadcasting and securities markets. He named a public-integrity commissioner who will have the power to refer corrupt government officials for prosecution.

* * *
Bremer has defended his issuance of many of the orders as necessary to implement democratic reforms and update Iraq's out-of-date legal code. He said he regarded the installation of inspectors-general in ministries, the creation of independent commissions and the changes to Iraqi law as important steps to fight corruption and cronyism, which in turn would help the formation of democratic institutions.

"You set up these things and they begin to develop a certain life and momentum on their own -- and it's harder to reverse course," Bremer said in a recent interview.

As of June 14, Bremer had issued 97 legal orders, which are defined by the U.S. occupation authority as "binding instructions or directives to the Iraqi people" that will remain in force even after the transfer of political authority. An annex to the country's interim constitution requires the approval of a majority of Allawi's ministers, as well as the interim president and two vice presidents, to overturn any of Bremer's edicts. A senior U.S. official in Iraq noted recently that it would "not be easy to reverse" the orders.

The New York Times has a set of three interesting stories in Sunday's paper about the torture memoranda released this week by the White House. I don't see a lot of new news here, but the articles do a great job of packaging the information that's out there in a digestible format.

Aides Say Memo Backed Coercion for Qaeda Cases

This front-page piece looks at the nexus between the legal advice given and the actions actually taken in the field by American spooks.

An August 2002 memo by the Justice Department that concluded interrogators could use extreme techniques on detainees in the war on terror helped provide an after-the-fact legal basis for harsh procedures used by the C.I.A. on high-level leaders of Al Qaeda, according to current and former government officials.

The legal memo was prepared after an internal debate within the government about the methods used to extract information from Abu Zubaydah, one of Osama bin Laden's top aides, after his capture in April 2002, the officials said. The memo provided a legal foundation for coercive techniques used later against other high-ranking detainees, like Khalid Shaikh Mohammed, believed to be the chief architect of the attacks of Sept. 11, 2001, who was captured in early 2003.

Defining Torture: Russian Roulette, Yes. Mind-Altering Drugs, Maybe.

This article by Kate Zernike looks at the problem of defining torture, and essentially mocks the Justice Department for taking such a narrow view. It focuses on the Aug. 1, 2002, memo written by then-OLC Chief Jay Bybee (now sitting on the 9th Circuit Court of Appeals for life), rather than the Defense Department memo that I've written so much about. The memo essentially finds the most tightly constricted way to construe 18 U.S.C. 2340 (the federal torture statute), so that American field operatives will know the conduct that will get them in hot water with DOJ prosecutors.

The memo starts by explaining that some acts may be "cruel, inhuman or degrading" but not constitute torture under Section 2340, the federal law criminalizing torture. To rise to the level of torture, it argues, the acts must be of an extreme nature, specifically intended to inflict severe pain or suffering, mental or physical. But the statute is vague on the meaning of "severe," so the authors try to construct one.

In the absence of such a definition, we construe a statutory term in accordance with its ordinary and natural meaning. The dictionary defines severe as "unsparing in exaction, punishment or censure" or "inflicting discomfort or pain hard to endure; sharp; afflictive; distressing; violent; extreme; as severe pain, anguish, torture" "extremely violent or grievous, severe pain" "of pain, suffering, loss, or the like: grievous, extreme" and "of circumstances hard to sustain or endure." Thus the adjective "severe" conveys that the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure.

This is odd reasoning for an agency of prosecutors. Normally, you expect that prosecutors would take the most expansive view of a law, i.e., that it covered the most conduct. A prosecutor should normally charge a crime even when it's not crystal clear that the requisite level of intent exists, for example, because that's an issue of fact to be argued in court to a jury. So what I see here is a real conflict of interest on an institutional level for the Justice Department. On the one hand, they have to act as the nation's chief law enforcement agency, with all the prosecutorial duties that entails. On the other hand, DOJ has to advise the President on matters of law. Those two duties clash when the President seeks to order or authorize conduct which may break the law (or come very close), and seeks DOJ advice as to how to do it the best. There is a strong incentive, as I've written, for the lawyers to produce a recipe for misconduct.

Adam Liptak picks up on this theme of professional responsibility in his NYT Week in Review column on the torture memoranda. His article looks at the professional duties of government lawyers, and concludes that in this case, those duties might not have been met by the memoranda in question. (This article comes after another in which Mr. Liptak reported that many legal scholars think the quality of lawyering in these memoranda was quite shoddy.)

... government lawyers have more complicated obligations than those in private practice do. The government lawyer's ultimate client, after all, is the public, and government lawyers have not infrequently told their bosses things they did not want to hear.

Attorney General Francis Biddle, for instance, opposed the internment of American citizens of Japanese ancestry during World War II. His boss, President Franklin Roosevelt, overruled him.

Douglas W. Kmiec, who led the Office of Legal Counsel in the Reagan administration, recalled delivering bad news himself. "One of the least happy days in my life," he said, "was telling President Reagan that he could not exercise an inherent line-item veto," because it wasn't implicit in the Constitution, "even though he dearly wanted it."

Walter Dellinger, who ran the office in the Clinton administration, said the torture memos represent a departure from the disinterested advice the office has historically given to presidents in both parties.

For what it's worth, someone might be listening to all this criticism. Dana Priest reported in Sunday's Washington Post that the CIA has suspended "aggressive interrogations" of top Al Qaeda leaders like Khalid Sheikh Mohammed whom it's holding, pending a review of those sessions' legality by the Justice Department. This move comes in response to the repudiation of the Aug. 2002 memo by White House Counsel Alberto Gonzales this week in a White House press conference.

"enhanced interrogation techniques," as the CIA calls them, include feigned drowning and refusal of pain medication for injuries. The tactics have been used to elicit intelligence from al Qaeda leaders such as Abu Zubaida and Khalid Sheik Mohammed.

Current and former CIA officers aware of the recent decision said the suspension reflects the CIA's fears of being accused of unsanctioned and illegal activities, as it was in the 1970s. The decision applies to CIA detention facilities, such as those around the world where the agency is interrogating al Qaeda leaders and their supporters, but not military prisons at Guantanamo Bay, Cuba, and elsewhere.

"Everything's on hold," said a former senior CIA official aware of the agency's decision. "The whole thing has been stopped until we sort out whether we are sure we're on legal ground." A CIA spokesman declined to comment on the issue.

CIA interrogations will continue but without the suspended techniques, which include feigning suffocation, "stress positions," light and noise bombardment, sleep deprivation, and making captives think they are being interrogated by another government.

Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.
"Keep ancient lands, your storied pomp!" cries she
With silent lips. "Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!"
-- The New Colossus, Emma Lazarus

This AP story reports on an extraordinary speech by Sen. John McCain to a national Latino organization's conference wherein he embraced the idea of amnesty and naturalization for America's millions of undocumented immigrants. This story has particular poignancy for Sen. McCain, because of the hundreds (or thousands?) of immigrants who die every year in the scorching deserts of Arizona, trying to cross into America to seek a better life for themselves and their families. It also puts Sen. McCain at odds with the Bush adminstration over yet another issue.

"It is in our national interest to bring the 8 to 12 million undocumented immigrants out of the shadows and allow them an opportunity to become citizens of this great nation," McCain said at the annual conference of the National Council of La Raza, a civil rights group and political think tank dedicated to promoting Hispanic issues.

The Arizona Republican said federal policy and border enforcement have failed to alleviate the deaths of migrants crossing the sweltering Southwest deserts and the violence of smugglers who often hold immigrants for ransom once they reach America.

An example of the government's wrongheaded approach, McCain said, is its recent introduction of unmanned aerial vehicles in Arizona that use thermal and night-vision equipment to help Border Patrol agents spot illegal immigrants.

"That ignores the fundamental problem," he said. "Where there's a demand, there's a supply ... There's a demand for people to fill jobs that Americans won't do."

Last year, McCain proposed legislation for a guest-worker program that would allow immigrants to work in the states for three years and then apply for legal permanent residency. Undocumented immigrants already working in the United States would have to wait another three years on a restricted visa before applying for permanent residency.

McCain on Saturday referred to his plan and other guest-worker proposals, including one by President Bush.

"These are all good proposals but we won't act because we're in an election year," he said. "The human tragedy taking place on our streets and the Southwestern border must be stopped."

This speech provides one more example of why I voted for Sen. McCain in March 2000, and why I'd vote for him again. This is precisely the kind of rational, intelligent approach to immigration that America needs. Ironically, President Bush appeared headed in this direction before Sept. 11. He had made overtures towards Mexican President Vicente Fox about precisely such an amnesty/naturalization program that would enable immigrants to cross legally into the United States. As the governor of Texas, he knows full well the importance of immigrants for our economy and our society. Yet since Sept. 11, his administration has pushed the most wrongheaded, unfair, irrational immigration policy imaginable, driven by false ghosts of Al Qaeda sleepers slipping in through the U.S.-Mexico border. We have diverted billions of dollars of resources to this problem that could have been spent on upgrading Justice Department computers or analyzing intelligence about actual terrorists (not phantoms on the border).

But Sen. McCain is right — we won't act now because of stupid election year politics. The political calculus on this issue marginalizes the needs of the immigrant population — by definition, non-voters — in favor of the proposals which garner votes. Arguably, such election-year calculus applies in both parties. Republican law-and-order interests have opposed these proposals in the past; so have parts of the social conservative movement. (Look at the history of support for Prop. 187 in California 10 years ago.) On the Democratic side, labor unions typically oppose any proposal to bring more immigrant workers into the U.S., for obvious reasons. I'm not sure how to break this political logjam, but Sen. McCain nails it when he says that more immigrants will die in the desert seeking opportunity before fix this issue.

This issue is personal for me — that's why I'm flying off the handle. My grandparents escaped Nazi Germany in 1942, only to be kept out of the U.S. by immigration quotas for more than 10 years. My father was born in a refugee camp off the coast of Venezuela; his family eventually immigrated to the U.S. in 1953. They settled in L.A., dealt with pervasive anti-German and anti-Semitic animus (responsible in part for their name change from Cohn to Carter), and made their life as middle-class Americans. My family embraced this country despite these hardships, and did well, largely because of the opportunities we were given here such as public schools and universities. To this day, my family continues to feel a tremendous debt to America, one that I may never repay. The point of that is to say that I identify with the immigrant families in Sen. McCain's speech — the ones in the Arizona desert today, seeking opportunity in the land of plenty. 51 years ago, that was my family, seeking entry to this country in search of a better life. But for my family's luck in securing a legal entry visa, they might not have come here at all, or been forced to enter America illegally.

Of course, my story's not unique. We are a nation of immigrants. Every family in this country has some story of how they got here, how they assimilated, how they found their place in our society. The only salient difference between us is the time we arrived, but whether your forefathers stepped off the Mayflower, or came here after the fall of Saigon -- we're all basically immigrants. In a sense, we're all just a few steps removed from the Arizona desert. We cannot forget the reasons that brought us here, or the hardships of getting here, by ostracizing and marginalizing those who today seek the American dream. Instead, we should seek the most effective and efficient vehicle for the regulated entry of these immigrants; a model which will help them to help our nation prosper. That model may be a new "bracero" program, or an amnesty program, or something entirely different -- those details are for Washington wonks to figure out. But I say let the immigrants come — our nation becomes stronger from their entry.

It's hard to say this story is just a coincidence, but I think that's what it is. The commandant of the Army's Military Police School at Fort Leonard Wood, Missouri, is retiring on Monday.

Brig. Gen. Stephen J. Curry, a 32-year Army veteran, has been in charge of military police training for the past three years.

He will relinquish his command Monday during a 9 a.m. ceremony at the post, according the installation's public affairs office.

Curry's departure comes amid ongoing investigations into alleged abuses of Iraqi prisoners at the hands of military police guarding them.

In response to the Abu Ghraib abuse scandal, Curry recently invited journalists to tour the post and watch how military police officers are trained.

At the time, he said the alleged abuses had "sullied" the reputation of the military police training program.

Analysis: For an MP, 1 star is about as high as you can go (there is 1 MP 2-star on active duty), and thus BG Curry's retirement is appropriately timed. Plus, he was in his position for three years, which is a bit long. Nonetheless, it's hard to shake the coincidental timing of this, given problems with MPs in Iraq. I've met BG Curry on several occasions, and while he's not the warmest of people, he is the epitome of a modern Army officer in terms of professionalism and tactical competence. I do not think he is being fired over Abu Ghraib, or because of any failure by the MP school to prevent the bad acts there. On the other hand, BG Curry's retirement will allow the Army's leadership to hand-pick an officer to remake the Military Police corps, and institute a tougher law-of-war training program at the MP school. (I'm not sure that it needed one, and that the problem lies at the MP school, but sometimes you have to take action even where it's not needed in order to respond to something as bad as the Abu Ghraib abuses.) We'll see how this story develops. BG Curry is not known as an outspoken officer, but I'd be surprised if he doesn't say something public soon about the MPs at Abu Ghraib and where he thinks the breakdown occurred.

If you read only one article on the U.S. military during the Bush administration, this should be it.

Sydney Freedberg has an exceptional article in the current issue of National Journal examining President Bush's record as a wartime president with respect to the military. The article offers a balanced assessment of President Bush's accomplishments and failures with respect to the military. It praises him for some transformative actions, and for the campaign in Afghanistan, while excoriating his administration for its blunders in Iraq that have stretched the Army to its breaking point. I think this article hits every target it aims at, and does with the characteristic wonkish detail you expect fron the National Journal. Check it out.

Deputy Defense Secretary Paul Wolfowitz must have a surgically-implanted metal rod in his back that enables him to conduct lightning, as well as other things, away from the Pentagon and Bush administration. Whether telling Gen. Eric Shinseki that he was "wildly off the mark" in predicting it would take a lot of troops to pacify Iraq, or in saying last week that the U.S. press in Iraq were cowering in their hotels, he often seems like he's approaching the world from a completely different set of assumptions than the rest of us.

So, I was not surprised when I read this exchange between him and MSNBC's Campbell Brown (sitting in for Chris Matthews) on Hardball. Here's the relevant excerpt:

BROWN: But you can't believe that the biggest problem, either, is the media and how they're covering the story, especially when...

WOLFOWITZ: I didn't say the biggest problem's the media. I said the media picture seems to be unbalanced. And I'm not the only one who's saying it. I met sergeants up in northern Iraq who are dealing with one of the hard-core areas of Iraq, and they say, It's not what we see in the international media. The story isn't being described accurately. And I don't know if I'm allowed to use the word balanced on this network, but I think balance is an important part of presenting the picture properly. I'm not media bashing. It's a very, very difficult story to cover. It's a dangerous place to be in. There is a lot of bad news that should be reported. But I think there's a lot of progress that's been made.

I think the stories of the heroism of these people — and frankly — I mean, I'll give you an example. A couple of senators the other day, three of them, actually — Senator Lieberman, Senator Santorum, Senator Sessions — had a press conference to show the real torture tapes from Abu Ghraib, the kind of horrible things that were done under Saddam, and there's been zero coverage of that in the media. Now, tell me that's not relevant to the current situation?

BROWN: Let me take it away from the insurgency or the violence, which we are covering, certainly, enormously.

WOLFOWITZ: By the way, it's not insurgency. An insurgency implies something that rose up afterwards. This is the same enemy that butchered Iraqis for 35 years, that fought us up until the fall of Baghdad and continues to fight afterwards. It was led by Saddam Hussein up until his capture in December. It's been led, in part, by his No. 2 or 3, Izzat Ibrahim al Douri, since then. It's been led by Zarqawi, who was a terrorist working for bin Laden in Afghanistan, who fled to Iraq in 2002. It's not an insurgency, in the sense of an uprising. It is a continuation of the war by people who never quit.

Huh? Is this another case of semantic confusion by the Pentagon? For a while, they refused to call it a guerilla war, or anything approaching a war, because "major combat operations" were over and the mission was accomplished. Then, a few top generals candidly said it was a guerilla war, and a counter-insurgency campaign, and OSD changed its tune. Now, it's not an insurgency? With all due respect, what's Mr. Wolfowitz smoking? His comment doesn't even make sense. There are former regime loyalists (FRLs) fighting us in Iraq; there are also foreign fighters in Iraq. Together, they make up an insurgency, according both to our doctrine and to our military leaders on the ground over there.

Regardless, compare Mr. Wolfowitz' quotes to the following news stories and then decide for yourself. My read is that we've got a surging insurgency on our hands, and that Army leaders are doing their best (despite lousy leadership in Washington) to get it under control.

Army Used Speed and Might, Plus Cash, Against Shiite Rebel (NYT)

The division's operation against the militia of Moktada al-Sadr, a rebellious Shiite cleric, is already being studied by an Army struggling to learn the lessons of a war that continues to evolve even as the formal occupation of Iraq changes gears next week.

As described by top commanders in Iraq and senior policy makers in Washington, the campaign was a mix of military tactics, political maneuverings, media management and a generous dollop of cash for quickly rebuilding war-ravaged cities — a formula that, if it survives the test of time, could become a model for future fighting against the persistent insurrections plaguing Iraq.

Iraqi Insurgents Are Surprisingly Cohesive, Armitage Says (WP) This story directly contradicts what DepSecDef Wolfowitz says. Indeed, it looks like he contradicts himself too.

Admitting that U.S. officials have underestimated the insurgency, Deputy Secretary of State Richard L. Armitage told the Senate Armed Services Committee that a series of attacks across Iraq in recent days indicate that the attackers have a "central nervous system" that is showing increased coordination and effectiveness. While the U.S. military expects heightened violence as Iraq approaches the transfer of limited power to an interim government next week, the sophistication of recent attacks has come as a bit of a surprise, according to testimony yesterday.

Armitage, Deputy Secretary of Defense Paul D. Wolfowitz and Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, told senators that they continue to believe that the insurgency is made up of a small minority of extremists and former members of Saddam Hussein's government who are bent on disrupting the drive for democracy in Iraq. But what was previously envisioned as a faltering insurgency has evolved into a significant security problem and a largely unknown quantity.

Adversary's Tactics Leave Troops Surprised, Exhausted (WP) This report indicates that Iraqi insurgents are using platoon-sized tactics to engage U.S. forces, and that they're actually standing to fight us instead of "shooting and scooting".

In dawn-to-dusk fighting, more than 100 armed insurgents overran neighborhoods and occupied downtown buildings, using techniques that U.S. commanders said resembled those once employed by the Iraqi army. Well-equipped and highly coordinated, the insurgents demonstrated a new level of strength and tactical skill that alarmed the soldiers facing them.

By the end of the day, infantry and armored patrols had driven the insurgents from the battered center of the city, though some remained in control of two police stations in districts long hostile to the U.S.-led occupation. Two U.S. soldiers were killed in the fight, including a company commander struck by a rocket-propelled grenade.

"They were definitely better than what we normally face," said Lt. T.J. Grider, 25, whose platoon fought for more than 12 hours. "But I think what we did today was pretty significant."

100 Iraqis Killed in Wave of Attacks
Insurgents Target Government Sites; 3 U.S. Soldiers Dead (WP)

BAGHDAD, June 24 — Insurgents launched a coordinated offensive against police and U.S. occupation forces in six Iraqi cities and towns Thursday, exploding car bombs and assaulting police strongholds in a string of attacks that killed scores of Iraqi police officers and civilians, as well as three American soldiers.

The attacks, which began at dawn and raged through the morning, were the broadest and among the bloodiest in an insurgency that has intensified markedly in the weeks leading up to the transfer of limited authority to the Iraqi interim government, scheduled for Wednesday.

Reports by the Iraqi Health Ministry, which received tallies from hospitals around the country, and the U.S. military indicated that about 100 Iraqis were killed and about 320 injured.

The widespread attacks, in a country still trying to reorganize its ripped-up government and security services, generated a flood of confusing and contradictory reports in Baghdad. But through the fog emerged a clear impression that insurgent forces have the strength, organization and support to mount multiple attacks in the face of 138,000 U.S. military personnel, about 25,000 other foreign troops and, by Pentagon count, more than 200,000 members of Iraqi security forces trained under U.S. supervision.

Iraq Insurgency Showing Signs of Momentum (LAT)

"I think we're going to continue to see sensational attacks," said Army Maj. Gen. David H. Petraeus, the 101st Airborne Division commander who will oversee the reshaping of Iraq's fledgling security forces.

Long gone are the days when the insurgents were dismissed as a finite force ticketed for high-tech annihilation by superior U.S. firepower.

Wreaking havoc and derailing plans for reconstruction of this battered nation, the dominant guerrilla movement — an unlikely Sunni alliance of hard-liners from the former regime, Islamic militants and anti-U.S. nationalists — has taken over towns, blocked highways, bombed police stations, assassinated lawmakers and other "collaborators," and abducted civilians.

Although Shiite Muslim fighters took U.S. forces by surprise in an April uprising, the Sunni insurgents represent a stronger, long-term threat, experts agree. The fighters, commanders say, are overwhelmingly Iraqis, with a small but important contingent of foreign fighters who specialize in carrying out suicide bombings and other spectacular attacks, possibly including this week's coordinated strikes that killed more than 100 people.

"They are effective," said Army Lt. Gen. Thomas F. Metz, operational commander of U.S. troops here.

The significant of all these reports is first that they paint a clear picture of a surging insurgency, and second that the commanders on the ground grasp the seriousness of the problem. Third, we are at a critical moment now where victory literally hangs in the balance. The transfer of sovereignty next week to Iraq marks an important step, but it must be backed up by a real improvement in security. Fortunately, our generals (and colonels, majors, captains, lieutenants and sergeants) in the field actually get this, and they are doing what they can to accomplish the mission. Unfortunately, our top political leaders in the Pentagon — and possibly elsewhere in Washington — don't have a clue. They're playing the same game of minimize-the-problem/minimize-the-cost right now that they played before the war. It's time to suck it up and say that this mission is going to be hard, it's going to cost us, and yet, it's still important enough to get done. Splitting hairs over the definition of an insurgency does not indicate that Mr. Wolfowitz has a firm grip on the problem; he ought to be worrying more about how to beat that insurgency.

I read with some amusement this Washington Post story regarding Vice President Dick Cheney's invokation of an expletive during a brief encoutner with Sen. Patrick Leahy. I've used this word in many creative ways, so I'm not one to criticize its use by anyone. The Post decided to print the expletive itself, rather than a placeholder (like f---) or euphemism. The story was, predictably, followed by another story examining the decision to run the word itself. Here's my favorite graf from that story:

A few dozen readers have called to complain, some saying the word was inappropriate in family newspaper read by children. "How utterly sad for your fine paper," a Springfield man said in an e-mail.

If children are reading the Washington Post's stories on page A4, then I think we ought to be proud of those kids for their diligence and give them some more credit than this. Frankly, I think that any kid who reads The Post or the NY Times can figure out an expletive in context anyway, and that we're kidding ourselves if we think that we can shield them from it just with a couple of dashes.

But, for the record, Intel Dump will continue to use placeholders where necessary to refer to expletives and language that some might consider obscene. Why? Because I don't want to get the traffic from Internet searches looking for things related to those words. (In a sense, it'd be false advertising, because I don't offer what they're looking for.) Also, many government Internet servers block sites with obscene or dirty content, and I don't want to prevent my readers who work for the government (or any conservative institution, for that matter) from viewing my site.

Update: I've gotten a few e-mails chiding me for missing the real point of this story. For the record, I think it's correct to point out the hypocrisy of a Vice President who uses profanity on the Senate floor while simultaneously overseeing an FCC that has pursued a zealous anti-profanity campaign. That said, I'm not going to criticize the use of profanity, because any friend of mine would then call me a hypocrite too.

Update II: The Washington Post reports in Saturday's paper that VP Cheney has not only taken ownership of his language -- but defended it on the grounds of necessity. (Hmmm...sounds like the administration's defense of its torture policies do -- not only did we have the power to "intensively interrogate" AQ detainees, but we were obligated to do so as a matter of wartime necessity.) Here's what the Veep had to say:

Cheney said he "probably" used an obscenity in an argument Tuesday on the Senate floor with Patrick J. Leahy (D-Vt.) and added that he had no regrets. "I expressed myself rather forcefully, felt better after I had done it," Cheney told Neil Cavuto of Fox News. The vice president said those who heard the putdown agreed with him. "I think that a lot of my colleagues felt that what I had said badly needed to be said, that it was long overdue."

* * *
Cheney said yesterday he was in no mood to exchange pleasantries with Leahy because Leahy had "challenged my integrity" by making charges of cronyism between Cheney and his former firm, Halliburton Co. Leahy on Monday had a conference call to kick off the Democratic National Committee's "Halliburton Week" focusing on Cheney, the company, "and the millions of dollars they've cost taxpayers," the party said.

"I didn't like the fact that after he had done so, then he wanted to act like, you know, everything's peaches and cream," Cheney said. "And I informed him of my view of his conduct in no uncertain terms. And as I say, I felt better afterwards."

So here's my issue with this. As I said earlier, I don't care about the use of profanity per se. But I do see people like the Vice President as role models for the rest of society, and I'm worried by the example this kind of behavior sets for American society. I don't care that a 3rd grader can read bad language in the Washington Post, so much as I care that a 3rd grader might now think it's okay to end an argument by saying "f--- off" to his adversary. After all, the Vice President did it, and it said it was okay, or so the 3rd grader would say to his teacher or father after being caught for doing the same thing on the schoolyard. But it's not okay. Civilized discourse does not end with an expletive and outstretched finger. When it does, the next step is quite likely to be a thrown punch (as in the caning of Sumner on the Senate floor many years ago). The Vice President ought not be setting this kind of example for American society. And when given the chance the next day to correct his behavior, he should have done so. It's one thing to say "f--- off" in the heat of the moment; it's quite another to ratify that expletive the next day.

How many troops does the U.S. really need — and why?
Events in the Sudan indicate a pressing need for more U.S. troops and nation-builders.

Slate features an article from Fred Kaplan on the idea of a draft for America's armed forces, alongside an article of mine discussing the current problems with the Pentagon's manpower models.

I know this has become cliche, but I really think that American national security policy is at a crossroads. We've been here for a while, but the events of Sept. 11 and the past three years have painted the issues in stark relief. Our nation no longer faces a threat composed exclusively of powerful states and their proxies, armed with conventional and nuclear weapons, seeking to maximize their interests in roughly predictable ways. Today, we face a myriad of threats — from powerful states like China to failing states like North Korea to failed states like Somalia to non-state actors like Al Qaeda. Instead of dealing simply with nukes, we now face enemies with the full range of chemical, biological, radiological, nuclear and high-yield explosive (CBRNE) capability. And to make matters worse, we live in a far more complex world today than we did 30 years ago. Global interdependence has made our security and way of life much more dependent on non-military factors around the world, such as the yen-dollar exchange rate and the spread of HIV in Africa. We ignore these threats at our peril.

A "soup to nuts" evaluation of American national security policy is long overdue. This assessment ought to look at where we stand in the world today, and where we want to go. It should assess our enemies, and imagine the potential deployments for our military in the next 30 years. It should then construct a military force for the missions of tomorrow — not yesterday. Such a force may require more manpower, more technology, or more money — or it could require less military muscle and more resources from the State Department and other agencies. Without this kind of assessment, we can't know, and we're as blind as a bat flying around in a very dangerous world.

This isn't academic. The AP reports this morning that things have deterioriated substantially in the Sudan, where NASA satellite photographs show widespread destruction of nearly 400 villages. This is a very real incident, with real civilian casualties, and real implications for the global security environment.

Andrew Natsios, administrator of the Agency for International Development, warned that time is running out to help 2 million Sudanese in desperate need of aid in Darfur. He said his agency's estimate that 350,000 could die of disease and malnutrition over the next nine months "is conservative."

Fighting between Arab militias and African residents has killed thousands of people and forced more than 1 million to flee their homes. International rights groups say the government has backed the Arab fighters in an ethnic cleansing campaign against the African villagers.

* * *
The latest weekly assessment of conditions in the 36 camps for displaced people in Darfur showed that in every one, security was poor and those taking refuge faced attacks or threats of attacks, Natsios said. He did not say who ran the camps.

"They've got to stop stonewalling the relief effort," Natsios said of the government. "What they need to do is enforce the agreement they signed" in neighboring Chad on April 8 to allow humanitarian agencies into the area.

* * *
Natsios said the United States had NASA take photographs of the destruction of villages in Darfur.


"We've now analyzed 576 villages, 300 of which are completely destroyed, 76 of which are substantially destroyed," he said. "When we checked them on the ground, we confirmed what we found. We are going to watch them, using aerial photography for the duration to track what's happening."

* * *
U.S. officials have been highlighting the plight of the displaced Sudanese, mindful that the world's inattention to Rwanda a decade ago may have contributed to the genocide that occurred there.


Natsios said the U.S. government has spent $116 million on the relief effort in Sudan — more than all other donors combined — "and we pledged $188 million between now and the end of next year."

The United States is moving "with a maximum sense of urgency to try to save lives," said Ranneberger, who accompanied Natsios. "We don't have time to sit around also and decide, is this ethnic cleansing or is this genocide, or what is it."

What will it take to stop the fighting and genocide in Sudan? Ideally, the Sudanese government would step up to the plate to establish order itself. But it does not look like that's going to happen. And thanks to U.S. satellite reconnaissance, we can see the consequences quite clearly — people are dying. While reading this AP report, I couldn't help but think that USAID was not sufficiently resourced or equipped to do this job. Negotiations and UN resolutions are not going to help the Sudanese people — it's going to take U.S. (or NATO/UN) troops on the ground to make a difference.

Imagine if USAID had an expeditionary nation-building capability of its own — a force of diplomats, aid workers, doctors, engineers, lawyers (but not too many), and a few units of soldiers for security. Or, imagine if USAID could at least call on an ad hoc task force of U.S. Army civil affairs units and build an ad hoc force of contractors for the mission. Then, we might actually be able to stop what's happening in the Sudan, because we could go in to ensure this humanitarian aid got where it needed to go, and this pithy militia was stopped in its tracks. But that's not going to happen. Why? Because first, no such "expeditionary nation building capability exists yet. Second, the American military's nation-building capabilities are so committed to Iraq and Afghanistan that there's nothing more to give.

Why should we care about Sudan though? I could make the liberal internationalist argument that America should care about genocide wherever it happens because it's our obligation to care as a world leader. Also, a liberal internationalist might point to the ways Sudan could affect the increasingly interdependent world, and how those effects might eventually wash up on our shores. I could make a soft humanitarian argument about the need for moral leadership, and how we should do here what we failed to do in Rwanda. (See Samantha Power's brilliant, Pulitzer Prize-winning "A Problem from Hell" for more on these arguments.) But instead, I'll point out one not-so-insignificant fact:

Q: What nation hosted Osama Bin Laden and allowed Al Qaeda to thrive during the 1990s when Saudi Arabia and Afghanistan didn't want him?

A: Sudan.

We let states fail, and failed states crumble, at our own peril.

Update: The New York Times reports Friday that Secretary of State Colin Powell will go to Sudan next week.

The Bush administration is currently studying whether the onslaught should be branded a "genocide," which under existing conventions would require aggressive action by the United States and other nations, and American diplomats are seeking further action from the United Nations.

Kofi Annan, the United Nations secretary general, will be in Sudan at the time of Mr. Powell's two-day visit, which will include a tour of the ravaged Darfur region and meetings in the capital.

"The secretary's visit to Sudan is intended to continue to call attention to the dire humanitarian situation in Darfur, to do whatever we can to stop the violence there and to make sure that the needy people of that region are receiving whatever supplies we can get to them," said Richard A. Boucher, the State Department spokesman.

This is a good sign — there was no such high-ranking trip to Rwanda during that nation's descent into hell, although diplomats did shuttle in-and-out of the Balkans during the 1990s. But, it's still too early to tell whether this visit signals any sort of tangible, meaningful U.S. commitment to this crisis. We'll have to exercise a little bit of tactical patience here to see how this situation develops.

Connie Bruck has an outstanding magazine-length political biography of California Governor Arnold Schwarzenegger in the June 28 issue of the New Yorker. Unfortunately, the article is not available online, but this Q&A with the article's author is available. The article has a lot of great stuff about California political history, and the ways that Arnold has broken from Sacramento's stale traditions in order to get things done. Like him or hate him, you have to admire his political effectiveness, because he's done more since last November than the past two governors to break gridlock in Sacramento. (Of course, the jury's still out on whether his policies are a good idea, but at least he was able to do something.) Check out the article, if you get the chance.

Tonight, the White House authorized the release of the entire torture memo file — all of the memoranda from the Justice Department, Defense Department and White House counsel's office relating to detainees in the war on terrorism, interrogation techniques, and how these areas might (or might not) be subject to domestic and international law. That itself is a big development. The AP also reports that the Justice Department and White House have disavowed one of the most important memos in this collection, "because it contained overbroad and irrelevant advice".

I look forward to reading these memoranda when they're published on the Internet — more to follow...

Update I: The Pentagon has put copies of its memoranda online, including this full version of the infamous DoD memo which started this whole ball down hill after being reported by Jess Bravin in the Wall Street Journal.

Update II: I've had a chance to skim some of the documents, including the DoD 4 Apr 03 memo titled "Working Group Report on Detainee Interrogations in the Global War on Terrorism". Until now, we only had a draft version of this report that was leaked to the Wall Street Journal — now we have the whole thing. As you can imagine, there are some jaw-dropping sections in the previously unpublished parts of this report, located near the end of the document. Here are a couple of excerpts from the section titled "VII. Conclusions Relevant to Interrogations of Unlawful Combatants Under DOD Control Outside the United States", in italics, with my commentary afterwards.

"Customary international law does not provide legally-enforceable restrictions on the interrogations of unlawful combatants under DOD control outside the United States."

Probably true. This reflects a major school of international legal thought that holds that a nation cannot be bound to anything other than "hard" international law like treaties, because those documents represent the positive assent of a nation to be bound as a matter of international law. Nonetheless, customary international law norms matter to a lot of our allies and friends around the world, and they tend to reflect Western moral conceptions of how wars ought to be fought by moral nations. Thus, it may be in our interest to follow these rules anyway, even if they're not "legally enforceable".

"The United States Constitution does not protect those individuals who are not United States citizens and who are outside the sovereign territory of the United States."

Maybe now, but probably not for long. This issue is the heart of what the Supreme Court will decide in Al-Odah v. United States and Rasul v. Bush sometime this month. Suffice to say, there is substantial disagreement in the legal community over this proposition. It is, by no measure, a well-settled matter of law. And as I noted in this Slate essay, it may in fact be contradicted by the assertion of "special maritime and territorial jurisdiction" over Guantanamo under 18 U.S.C. 7. If I were a lawyer in the Pentagon, I'd start looking at every policy that relies on this legal proposition in anticipation of what the Supreme Court does this month.

"Civilian employees and employees of DOD contractors may be subject to prosecution under the Federal Criminal Code for, among other offenses, acts which constitute assault (in various degrees), maiming, manslaughter and murder."

It's good to see this statement in writing from the Pentagon's lawyers. Because until very recently, you wouldn't believe it from the level of inaction exhibited by the Justice Department. I simply can't believe that there were no civilians involved in "exceptional interrogations" at Guantanamo or Abu Ghraib, when you consider the extent to which the CIA and other agencies participate in these questioning sessions. It seems to me that there should be few a few CIA/OGA employees in the prosecution queue too, in addition to the 6 MPs facing general courts martial over Abu Ghraib.

"Other nations, including major partner nations, may consider use of techniques more aggressive than those appropriate for POWs violative of international law or their own domestic law, potentially making U.S. personnel involved in the use of such techniques subject to prosecution for perceived human rights violations in other nations or to being surrendered to international fora, such as the ICC; this has the potential to impact future operations and overseas travel of such personnel."

Spot on. Other nations do care about international law, and this issue will affect our ability to work with other nations on a variety of international projects. And, despite the fact that the US is not a party to the Rome Treaty creating the ICC, its citizens and personnel can still be prosecuted by the ICC.

But here's the real irony. Until now, our allies were always known to be a little bit more willing to use force in interrogation. Here's an excerpt from an April 2002 Wall Street Journal article by Jess Bravin on this point:

The students get a day's training in the Geneva Conventions of 1949, which govern the treatment of prisoners during wartime, and are cautioned that violating the treaty could bring prosecution. That means there are some lines they can't cross — no truth serum, or physical or mental coercion, according to Army lawyers.

On the other hand, even the International Committee of the Red Cross, which monitors compliance with the treaty, says there's room for interpretation. "The Geneva Conventions are not specific to the point of listing whatever forms of interrogations are or are not permissible," says an ICRC spokesman, as long as they are not "degrading."

Thus, Sgt. Giersdorf tells students, "You can put a source in any position you want. You can chain his legs to the chair, you can handcuff his hands behind him," force him to stand at attention or have military police thrust him to the ground. "If [a prisoner] says it hurts, is it torture?" he asks.

"Yes," say several students.

"No, it's not," the sergeant corrects. America's allies, he says, go farther, placing prisoners into what he calls "stress positions" until they talk. Those aren't taught here, he is quick to add, but "if you work with the Brits or the Dutch or the Germans, they can show you all about it." In an interview, he says, "I've known people in the U.S. Army who have used stress positions."

The Army judge advocate general's corps keeps a lawyer on hand during interrogations, for quick decisions on the degree of physical or mental pressure allowed. "What we can get away with depends on them," Sgt. Giersdorf explains. "One JAG officer might say it's a go, another might say it's torture."

So now, it appears that American interrogation practices have gone beyond what our allies authorize — and deem acceptable conduct by their intelligence officials. That's not a good thing for interoperability; it's not a good thing for building coalitions. I don't think that many NATO nations will want their militaries working with ours if we establish policies which mandate differential observance of the laws of armed conflict.

"The more aggressive the interrogation technique used, the greater the likelihood that it will adversely affect the admissibility of any acquired statements or confessions in prosecutions against the person interrogated, including in military commissions (to a lesser extent than in other U.S. courts)."

For more on this, see "Tainted by Torture", describing the various ways that "intensive interrogation" practices undermine the legal war on terrorism for exactly this reason. I did not see this paragraph in the Pentagon memorandum before I wrote my article, but I wish I had. The fact that the Pentagon knew of this risk and proceeded anyway speaks volumes both about their perceived need for intensive interrogations, and their apparent disregard for any legal consequences that might flow from that. As a laptop quarterback, I don't know what they know, so I can't judge whether this balance was struck properly or not. But it's clear the Pentagon erred on the side of operational necessity, not the rule of law.

And here's my personal favorite from the conclusions section of this memo:

"Should information regarding the use of more aggressive interrogation techniques than have been used traditionally by U.S. forces become public, it is likely to be exaggerated or distorted in the U.S. and international media accounts, and may produce an adverse effect on support for the war on terrorism."

Really? Is this the kind of legal analysis we pay scores of civilian and military lawyers to produce with our tax dollars? Do you really need a J.D. to figure this point out? I have a bone to pick with part of this statement, because I think any distortions of this story by the mainstream press (NYT, WP, LAT, WSJ) have been directly attributable to White House and Pentagon spin efforts. But the last part of this statement is certainly true — and it's one of those things that I like to call a "blinding flash of the obvious". You don't need a J.D. or a PhD in political science to know that this story will have a negative impact on support for America's war on terrorism. That ought to be self-evident to anyone with a reasonable amount of common sense.

Unfortunately, we are engaged in a war of images and ideas as much as we are engaged in a war of soldiers and bullets. The key terrain in this war is the collective consciousness of the world, particularly the Arab world, and stories like this provide our enemies with all the ammunition they need to seize that key terrain. We may ultimately be able to retake some hearts and minds through good deeds in Iraq and elsewhere, but that's a very big if. For now, I think the White House has made a good decision to come clean on this stuff, although I think we are still getting only a fraction of the paper trail on this issue.

Update III: The Washington Post has a collection (via Findlaw.Com) of several Justice Department memoranda pertinent to this issue. It's great to have these documents and those provided by the Pentagon, but there's still a lot more that hasn't been released which ought to be.

Update IV: The White House has posted the transcript of an extraordinary press conference held in the Old Executive Office Building by White House Counsel Alberto Gonzales, DoD General Counsel William Haynes II, DoD Deputy General Counsel Daniel Dell'Orto, and Army Dep. Chief of Staff (Intel) Keith Alexander. This is a cast of characters that does not normally hold press conferences, or operate in any public way whatsoever, so it's quite significant that they're being trotted out by the White House to respond to questions on this matter.

My friend and colleague at JAG Central runs down a few of the initial steps in the courts martial of six Army MPs in Iraq for abuses at Abu Ghraib. He has more time on his hands this summer I do, and he has a more substantial background in military law than me. So, his 'blog has become my go-to site for coverage of these cases. I imagine that he'll have more coverage as the Abu Ghraib prosecutions continue over the next several weeks and months.

Mi dispiace — no opinions were handed down today in the terrorism cases by the Supreme Court.

But, the Court did hand down an extremely important Constitutional criminal procedure decision in Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., No. 03-5554. The case centered on the question of whether a police officer can ask for a person's identification during a "Terry stop". Those types of encounters, whichi require only a reasonable suspicion by the police officer (and not the higher standard of probable cause), were approved by the Court in Terry v. Ohio. Here's a brief excerpt from the holding of Terry:

"We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him."

Today, the Supreme Court extended the Terry stop to include "stop and ID" in addition to "stop and frisk". The case arose out of a Nevada cattle rancher's misdemeanor conviction, but it's easy to see the applicability of this case in other contexts. Justice Anthony M. Kennedy, writing for the Court's majority, said these "stop and ID" searches violated neither the 4th nor the 5th Amendment rights of the defendant in this case. Here are some excerpts from the majority opinion.

On the 4th Amendment issues:

"Asking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth
Amendment. [emphasis added]

* * *
"Obtaining a suspect's name in the course of a Terry stop serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in cases such as this, where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the
potential victim."

On the 5th Amendment questions:

"The Fifth Amendment prohibits only compelled testimony
that is incriminating."

* * *
"In this case petitioner's refusal to disclose his name was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it would furnish a link in the chain of evidence needed to prosecute him. ... Even today, petitioner does not explain how the disclosure of his name could have been used against him in a criminal case."

* * *
"The narrow scope of the disclosure requirement is also important. One's identity is, by definition, unique; yet it is, in another sense, a universal characteristic. Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances."

Analysis: The Court appears to have assumed away both the 4th and 5th Amendment issues quite summarily. As a matter of 4th Amendment law, the Court said that these "stop and ID" acts are not regulated by the 4th Amendment at all, much like police searches of garbage (see California v. Greenwood). For the 5th Amendment claim, the Court is saying that the 5th Amendment only protects against those compelled testimony which might be incriminating. And since your name isn't something which can make you guilty of a crime, you don't have a 5th Amendment against being compelled to testify to your name.

Presumably, this case might authorize the police to now use "stop and ID" tactics to conduct large-scale gang sweeps in places like South L.A.'s Nickerson Gardens housing complex. Also, police might use this power in the course of normal "order maintenance" activities (as opposed to "law enforcement" activities), such as walking the beat, in order to gather police intelligence and reduce street crime. There may be implications for the terrorism arena as well.

Could this presage the Court's holding in the terrorism cases? Possibly, but I don't think so. In theory, the Hiibel decision could signal the Court's willingness to go along with government (read: law enforcement) interests where the need is great. However, I think this is a minor case when compared to the issues at stake in the Gitmo and enemy combatant cases. Moreover, I think the Court is far more comfortable with traditional law enforcement practices than it is with wartime powers and practices, and willing to endorse some additional for law enforcement officers where it sees fit. If anything, the Court may point to well-settled law about police power to support the notion that the government does not need extra-Constitutional powers such as those being sought in the Gitmo and enemy combatant cases. At least, that's my best educated guess.

Update I: Howard Bashman's How Appealing weblog has links to all of the opinions handed down today.

Report finds that "government and military officials have repeatedly exaggerated both the danger the detainees posed and the intelligence they have provided"

The New York Times leads with a 6,000+ word report on the operation at Guantanamo Bay this morning. The headline and story ultimately conclude that "U.S. Said to Overstate Value of Guantánamo Detainees". Ordinarily, this story would be quite significant (although it reprises earlier reporting I've seen in the Los Angeles Times, Washington Post and Wall Street Journal). But this report is particularly significant now, with the Supreme Court expected to hand down a decision in the Guantanamo jurisdiction cases Al-Odah v. United States and Rasul v. Bush sometime today or in the next two weeks.

I'm no media critic, but the following thought occurred to me while reading this lengthy piece: is this a piece of damage control by the White House and Justice Department in anticipation of the Supreme Court's decisions? Did the top lawyers in the Bush administration see the writing on the wall, and decide to launch a p.r. campaign regarding Gitmo and the Padilla detention? Did that p.r. campaign manifest itself in "background" interviews and leaks to the New York Times? The length of the story and commitment of editorial resources (8 reporters in the tagline) both contradict this theory, but the timing seems a bit too perfect to be just the product of coincidence.