Tuesday, January 06, 2004
Dispatch from Afghanistan
David Adesnik at Oxblog relays a thoughtful letter from an American Army officer currently deployed to Afghanistan. I wasn't privy to the letter so I can't vouch for its authenticity, but it looks authentic. Among other things, the writer lets us know that we have unfinished business in Afghanistan, and that thousands of our sons and daughters remain committed there.
Soon after arriving at what one Army spokesman called “the most evil place in Afghanistan,” my platoon was involved in the largest firefight since Operation Anaconda in March 2002. During a battle that raged intermittently for almost 12 hours, we destroyed close to 40 “anti-coalition militants,” but suffered one very painful American casualty. PFC [name deleted], a 19-year-old soldier in my platoon, died from sniper fire while cresting a hill near Lozano Ridge. Coping with the loss of one of our own was the toughest mission my platoon faced during the last 5 months. Men cited for their bravery in the fight were torn by guilt and self-doubt and many still suffer from nightmares. Fortunately for the platoon, we immediately returned to the front lines after a brief period of mourning. After a few weeks of relative calm, we had another big fight south of Shkin on October 25th. We lost no men in our platoon, but had several friendly casualties in a sister unit. Again, my men impressed me with their courage under fire and professional competence. I feel fortunate to have had the opportunity to see my men change over 9 months- watching them train last spring and then execute the same drills with deadly efficacy in combat. Leading my men in combat has been the most satisfying and challenging experience in my career.
A kindler, gentler Marine Corps emerges to win hearts and minds
The Wall Street Journal has a thoughtful piece today on the training by Marines at Twentynine Palms in the California desert for Iraq, and how such training differs from what most people would expect of this fighting force. The Marines are certainly training for war, and how to kill the enemy when necessary. But they're also training for something less than war -- how to secure and stabilize the nation of Iraq with their iron fist wrapped in a velvet glove.
TWENTYNINE PALMS, Calif. -- On a bright winter afternoon in California's high desert, Staff Sgt. Adam Walker gathered his platoon's newest Marines to give them their marching orders for when they get to Iraq: Be nice.Update: Tom Ricks has a good story on the same subject in Wednesday's edition of the Washington Post. There are a couple of great quotes in the story which sum up exactly what's going on here:
For what it's worth, the Marine Corps has always been on the cutting edge of counter-insurgency doctrine. They invented the way America fights its "small wars", as Max Boot reports in his book Savage Wars of Peace. The Marine Corps led the way in transforming themselves into a "3rd Generation" force, and have also pioneered much of the thought on "4th Generation" warfare. It does not surprise me that the Marines are willing to put some of those ideas into action.
The latest mud to hit Wes Clark: he's anti-Semitic
Even the NY Times can't resist the temptation to print such drivel
Last week, Joel Mowbray launched a mud salvo against retired Gen. Anthony Zinni, whom he accused of being anti-Semitic. Gen. Zinni, a former commander of CENTCOM, has recently criticized the "neo-conservative" policy makers in the Bush Administration for their foreign policy decisions (which Zinni was a part of for a while as Secretary Powell's envoy to the Middle East peace process). Mowbray thinks "neo-con" is really just code for "Jewish", because of high-profile Jews in the administration like Paul Wolfowitz and Douglas Feith. Here's a short bit of his argument:
Technically, the former head of the Central Command in the Middle East didn’t say “Jews.” He instead used a term that has become a new favorite for anti-Semites: “neoconservatives.” As the name implies, “neoconservative” was originally meant to denote someone who is a newcomer to the right. In the 90’s, many people self-identified themselves as “neocons,” but today that term has become synonymous with “Jews.”Comes now David Brooks, new center-right columnist for the New York Times, with a new salvo of mud directed at retired Gen. Wesley K. Clark. Brooks picks up the argument right where Mowbray leaves off, extending it to cover Gen. Clark and his criticisms of the neo-cons.
Theories about the tightly knit neocon cabal came in waves. One day you read that neocons were pushing plans to finish off Iraq and move into Syria. Web sites appeared detailing neocon conspiracies; my favorite described a neocon outing organized by Dick Cheney to hunt for humans. The Asian press had the most lurid stories; the European press the most thorough. Every day, it seemed, Le Monde or some deep-thinking German paper would have an exposé on the neocon cabal, complete with charts connecting all the conspirators.
Analysis: I thought Mowbray's column was a slanderous form of manure when I read it, and I still feel that way. I even opined in a group discussion that "Next thing you know, they'll use this slur against Wes Clark." I didn't think that would actually come to pass, since there's nothing in the record to suggest that either Gen. Zinni or Gen. Clark is an anti-Semite. And for what it's worth, I think Josh Marshall's right that the neo-cons deserve some criticism for mismanaging our foreign policy. Indeed, in all of the reports I've read on both men, the exact opposite is true. Gen. Zinni did yeoman's work as commander of CENTCOM, as described in The Mission by Dana Priest. And he did great work as Secretary Powell's envoy to Israel and Palestine, at a time when neither side wanted to talk. Similarly, Gen. Clark has evidenced a particular sensitivity to Jews and other persecuted peoples (e.g. the Kosovar Albanians) while in uniform. (Arguably, the Kosovo War was about exorcising U.S. and European demons for their collective failure to act during the Holocaust.) Maybe that's because he's half Jewish? Gen. Clark's original last name was Kanne -- his father Benjamin Kanne was Jewish, and he subsequently was raised as a Protestant who converted to Catholicism in Vietnam. I don't think Clark is truly the self-loathing type, and I don't think he's an anti-Semite. But this is convenient mud for conservatives who want to tar two men before the Democratic party.
Anti-Semite is one of the slurs du jour in American politics. It's like "racist" or "sexist" or "former drug addict" -- it instantly tars a person and taints everything they've ever said. And it doesn't have to be proven, since the existence of anti-Semitism is presumed in so many bastions of American society. (Including, I might add, the American military.) Its use reminds me of the old political joke. One political operative says to the other: "Let's just say the guy sleeps with pigs." The other says "But that's not true." The first operative, who I'll name Karl, says "Who cares? The rumor will stick, and he'll spend the rest of the campaign trying to explain that he doesn't sleep with farm animals."
I'm not so naive as to think that such slander has no place or history in politics. It's a dirty business, and anyone with a thin skin should stay out of politics. But the irony here is that the neo-con's defenders are now committing the same bad act with with the neo-cons themselves are charged -- distortion of the facts in order to make an argument. Granted, all the neo-con defenders are doing is bending the record to make a baseless charge of anti-Semitism, while the neo-cons themselves distorted the facts in order to launch a war. But the parallel is still there. It's like one of my law professors says: "When the facts and the law aren't on your side... that's when you really get creative."
Update I: Mark Lewis puts it more directly on his site: "Clark = Anti-Semite??? Or perhaps David Brooks = Jackass." I'll go for the latter. Mark also points us to Josh Marshall's comments on the matter. Josh has written some great stuff on neo-cons and their influence on contemporary American foreign policy, so his commentary is worth reading.
Update II: Kevin Drum adds his voice to the fray, along with Mark Kleiman. I imagine this will be an issue discussed tomorrow night by Wes Clark during his "wireside" chat with several notable bloggers.
Monday, January 05, 2004
Accidents exact a heavy toll from America's military
The Los Angeles Times reported yesterday on one of the largest problems faced by America's military: the rate at which accidents kill or injure soldiers, and the reasons for these accidents. If you've been following the Iraq casualty announcements, you'll know that a staggering number have died as the result of non-combat wounds. The Times reports that this is nothing new, and that accidents have taken thousands of lives over the last two decades.
The recent increases occurred as the U.S. fought wars in Afghanistan and Iraq and troops found themselves in treacherous conditions and unfamiliar terrain. Nonetheless, most fatal accidents in the last three years occurred in the United States. In fact, half the fatalities happened in private motor vehicles — exacting a high price in lost soldiers and increased health-care costs.Analysis: This is a really tough nut to crack. Training for combat must be somewhat dangerous in order to approximate the risks and circumstances faced in combat. Commanders learn to manage risks in their operations -- both safety risks and operational risks. But it's an inexact science at best, and it's very hard to find the balance between realistic training and safe training. Factors such as fatigue, maintenance, weather, and terrain often make this very tricky. It's even harder in combat, where soldiers are forced to go-go-go in order to get the mission done, at the cost of proper maintenance, rest plans, etc. It takes an extremely disciplined force to manage this kind of risk while simultaneously pursuing the mission in the most effective and efficient way possible.
The bottom line is this: deaths caused by accidents are generally preventable deaths (see this essay of the same name), and as such, they're a real tragedy when they occur because they didn't have to occur. Deaths in combat happen, and you're never quite sure you can prevent them because the enemy gets a vote too and combat is chaotic by nature. We may never be able to reduce this number to zero, just as we're not able to stop all fatal traffic accidents in the U.S. But it's a metric we ought to be concerned about for three reasons. First, America's sons and daughters in uniform are a precious resource, and we should worry about any threat that could take them from us. Second, accidental deaths/injuries take combat power (soldiers) out of the fight, and we can't afford those losses. Third, a high number of such accidents is an indicator of other problems in the force, such as deferred maintenance, poor rest plans during continuous operations, poor drivers' training, etc.
India and Pakistan take tentative steps to a lasting peace
One of the biggest news stories of this past week was buried inside the three major newspapers I read, but it deserves mention. The Los Angeles Times reports that Indian Prime Minister Atal Behari Vajpayee had a one-on-one meeting in Pakistan yesterday with Pakistani President Pervez Musharraf, as part of Vajpayee's visit to Pakistan for a regional meeting. The meeting comes as the latest in a series of peaceful overtures between the two nuclear adversaries.
There were no immediate details on the substance of the Vajpayee-Musharraf talks, which lasted about an hour.Analysis: I'm not as smart on South Asian issues as I should be, considering its potential for war in the next decade. (See RAND analyst Chris Fair's article in the Atlantic Monthly predicting that India/Pakistan will be the source of 2 out of 10 major conflicts in the next decade.) But whenever I see some news like this, I think it's generally a good thing. For whatever it's worth, we do not want a war on the Indian sub-continent, and it's good news for the United States when two regional powers can manage their conflicts with diplomacy instead of force. It would be great to see some sort of strategic framework evolve from these high-level talks, or even some bilateral compact. But at least they're talking, and that's a good sign.
Update: CNN reports that "history has been made", and that India and Pakistan have agreed to a diplomatic framework which will guide future talks between the two nations over the disputed region of Kashmir.
Wednesday, December 31, 2003
Happy New Year: Intel Dump will take a holiday until January 5, 2004. Until then, have a safe and happy New Years celebration, wherever you're at.
Tearing down the wall between spooks and cops
Stewart Baker, a Washington attorney who used to be GC for the National Security Agency, has an excellent essay in Slate wherein he argues that we have invested too much in separating law enforcement from intelligence in the name of civil liberties. This "wall of separation" grew up after various agencies abused various groups' privacy during the 1960s and 1970s, and was thought to safeguard citizens from the more invasive forms of surveillance used in the national security world. Unfortuately, the result has been that good intel could not be passed onto law enforcement agencies. And that, in turn, has handcuffed America's cops in dealing with terrorism, with deadly results.
. . . the source of this tragedy was not wicked or uncaring officials. The wall was built by professionals who thought they were acting in the country's and their agency's best interest. They were focused on the hypothetical risk to privacy if foreign intelligence and domestic law enforcement were allowed to mix, and they worried that courts and Congress would punish them for putting aside these theoretical concerns to combat a threat that was both foreign and domestic. They feared that years of successful collaboration would end in disaster if the results of a single collaboration could be painted as a privacy scandal, so they created an ever-higher wall to govern operations at the border between domestic law enforcement and foreign intelligence. As drafted, the rules technically allowed antiterrorism investigators to do their jobs—if the investigators were sufficiently determined and creative. For a while they were, but the FISA court scandal sapped their determination and finally choked off any practical hope of getting the job done.Analysis: I wish Mr. Stewart was overstating the case here, but I don't think he is. First, a cursory glance at his c.v. (which includes a J.D. from UCLA Law School) will tell you that he knows his stuff. Second, the Senate Select Committee on Intel has come to the same conclusion -- that this wall of separation handicapped America's government in detecting and interdicting the 9/11 hijackers. Third, not enough has been done to increase information sharing between public agencies, both horizontally (think CIA-FBI) and vertically (think FBI-NYPD). We're still nowhere near the day where the local police officer can reach into an intel database to input his observations from the street, or where he receives actionable intel from above. Or even where first responder agencies in the same county can talk on the same radios! This wall of separation continues to impede our anti-terrorism efforts, along with the bureaucratic walls which separate federal, state and local agencies.
Despite the billions we've spent on homeland security since 9/11/01, we may not have achieved much of a real increase in security because of our failure to fix this area. We've won some tactical battles overseas in the war on terror, and we've tightened some important areas of our domestic security net (like port security). But intelligence is what drives operations, and we have not yet created the intelligence or information architecture yet to drive domestic anti-terrorism operations. Until we do, we will be vulnerable to an enemy who can move faster than the flow of information between the FBI and the CIA, or between the CIA and the Los Angeles Police Department.
Winning hearts and minds in Iraq: Here and here are two ways the U.S. Army is working to earn the trust of Iraqi professionals and citizens. I wish I could say these were unique anecdotes, but I've seen scores of similar stories in e-mail passed among my friends from the Army. Our soldiers are doing good work over there, despite running guerilla conflict.
Israeli war dames
Mark Lewis points to an article in the Washington Times highlighting the designation of an mixed-gender infantry battalion in the Israeli army. Israel is one of a few Western nations to have used women as infantry (as opposed to support troops), and it has often been used as a point of comparison by those who would have women serve in the American infantry. The Israeli army constituted these units out of necessity -- its all-male infantry force structure couldn't stretch to do all of the missions. Mark's got some great comments on the issue, which reflect his experience in the Army's elite Ranger battalions and current engagement with Army personnel policy.
Hoping to relieve units stretched thin by the Palestinian uprising, the army created predominantly female companies three years ago to patrol the border for drug smugglers and the rare terrorist infiltrator. Only men served on the more dangerous Lebanese border and in the Palestinian territories.Analysis: So far, the experiment seems to be working. The Israeli army has learned to deal with the two major issues facing gender integration of the infantry: physical capabilities, and unit cohesion. Solving the first problem is really a matter of setting mission-based performance standards and ruthlessly enforcing them. (Mark's comments re: Ranger indoctrination are relevant here) It comes down to the will of leaders to kick out women (or men) who don't meet the standard. Solving the second problem is much harder. The presence of both sexes in units adds a huge rock in the rucksack of every NCO and officer. But once again, tough leadership can make it work. If you built a strong, tough, cohesive unit through the crucible of training and shared sacrifice, you can make mixed-gender units work.
As Mark points out, women have done quite well in the U.S. Army during the recent Iraq and Afghanistan wars. Unfortunately, some have used anecdotal incidents like PFC Lynch's capture and sexual assault to argue that women don't belong in ground combat. Others have used pregnancy statistics and non-battle injury statistics to the same effect. But as I wrote a year ago in War Dames for the Washington Monthly, the wisdom of sending women into ground combat will be judged by mission accomplishment, not sideshows like these. Women performed well in this war, whether they were MPs, Apache pilots, intelligence analysts, truck drivers, or medics. (A female Army medic, SPC Billie Grimes, appears on the cover of Time's person of the year issue.) Mission accomplishment is the bottom line in combat, and our daughters in uniform proved their mettle this time around.
Where will this issue go from here? It's hard to tell. I'm not sure the American public or American military is ready to fully integrate women into the combat arms yet. But attitudes are a changin'. Mark points out a recent Army Times survey (subscription required) on U.S. military attitudes on the issue, which found that "More than two in three supported the idea of women serving in combat, though many suggested women should only get such assignments if they choose them."
Unfortunately, the Army Times survey also found that "Nearly half of women surveyed said they had been the victim of sexual harassment in the military." This last part deserves mention, because it lurks as one of the major unintended (but foreseeable) consequences of gender integration for the military. Arguably, the American military has become the model institution for racial integration in America. (See All That We Can Be by Charlie Moskos and John Butler for a great history of this issue.) Yet, the military still has extensive Equal Opportunity programs in every unit to manage racial issues and educate soldiers about them. Similarly, the military has made great strides in the area of gender integration, and is arguably more equal for women than any major police or fire department. But there's still a long way left to go. The sad truth today is that a woman in uniform has more to fear from her fellow soldiers than from the enemy when it comes to sexual assault, notwithstanding the hollow arguments from those who would use PFC Jessica Lynch's assault as an argument against women in the military. (I explain here why this argument is hollow.) As the American military embraces women more, it must also come to grips with the gender problems which affect every workplace in America. That will take time.
It may be another 5, 10, even 25 years before the military is fully ready to integrate women in every unit. We're not where the Israelis are (yet), where we have to push women forward because we need the soldiers on the front line. We're also doing pretty well, as shown by the performance of thousands of women in the second Gulf War. There are still issues, from problems at the Air Force Academy to sexual tension in units now deployed to Iraq. But ours is a heterogenous force, and there will always be issues in a heterogenous force. The key to overcoming these issues is leadership -- from the top, in the form of smartly written policies; and at the bottom, in the form of officers and NCOs who enforce standards. America's military is stronger than the differences between its soldiers, whatever those differences may be. Strong leadership, shared sacrifice, and professionalism have a remarkable ability to make these differences irrelevant, if not altogether non-existent. In time, our military will overcome its gender issues just as it did with its race issues.
Tuesday, December 30, 2003
New blueprints for military commissions
A friend just called to let me know that the Pentagon has announced some major changes to its design for the military commissions it plans to use to try men currently detained at Guantanamo Bay, Cuba. The changes are very interesting, and they probably presage the announcement of tribunals in the near future. Basically, the new rule establishes a right of review, similar to a right of appeal in the civilian system. Also, the Pentagon announced today the appointment of four men to serve as review panel members, similar to an ad hoc court of appeals:
· Griffin B. Bell, former U.S. attorney general and former U.S. circuit judge, U.S. Court of Appeals for the Fifth CircuitAnalysis: These changes are big, but critics of the tribunals will probably say they don't go far enough. The lack of a formal review process has been a constant criticism of the tribunals since the original Presidential order was issued in Nov. 2001. However, this new rule doesn't set up an actual right of appeal, such as in the civilian courts. And it doesn't take the obvious course of action, which would've been to set up a right of appeal to the U.S. Court of Appeals for the Armed Forces. Nor does it give tribunal defendants a right of appeal to the U.S. Courts of Appeal or the U.S. Supreme Court. Consequently, I predict that these changes won't do much to assuage the concerns of those who have criticized our policies at Guantanamo Bay, and who have criticized the tribunals.
There may also be an Art. I/Art. III issue lurking here for defense attorneys to fight on appeal, since this new rule seems to pre-empt any possibility of jurisdiction for the civilian courts. That preemption may contravene Art. III, Sec. 2 of the Constitution, as well as various parts of Title 28, United States Code. Essentially, the Constitutional grants the courts jurisdiction over "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority". Sec. 2 goes on to give the Supreme Court appellate jurisdiction "In all the other Cases before mentioned . . . both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Art. I, Sec. 8 then gives Congress the power "To make Rules for the Government and Regulation of the land and naval Forces". Arguably, these Presidential (think Art. II) rules for the conduct of military tribunals clash with both Art. I and Art. III, because they (a) deprive the U.S. courts of jurisdiction and (b) exist outside the scope of the Congressionally-passed Uniform Code of Military Justice. I'm not smart enough (yet) to opine on that, but maybe Eugene Volokh or Eric Muller can help me out with an answer.
More to follow...
Update: Jess Bravin reports in this morning's Wall Street Journal (subscription required) that the real story here was the decision to replace Deputy Defense Secretary Paul Wolfowitz in the tribunal process with a retired Army JAG 2-star general. He also writes that at least one Gitmo defense attorney -- USMC Major Michael Mori, assigned to defend David Hicks -- is not impressed with these changes.
Dereliction of duty?
Did the National Guard deliberately unprepared Chinook helicopters into harm's way?
The St. Louis Post-Dispatch reports today that senior National Guard officers have claimed responsibility for the decision to deploy CH-47 "Chinook" helicopters to Iraq that lacked the most modern flare-dispensing systems available. That decision may be responsible for the missile attack which downed a Chinook last month in Iraq, killing 16 soldiers.
WASHINGTON - The deployment to Iraq of a combined Illinois-Iowa National Guard Chinook unit without required anti-missile defenses did not reflect an oversight or lack of coordination between the Guard and the Army.Analysis: This discussion came up on a military list-serv that I subscribe to, and it generated some good comments. I don't think this is "deliberate" or "intentional" in the legal sense. It's closer to negligence or recklessness though, insofar as the National Guard knew the Chinooks lacked the flare equipment and still sent them into a risky environment anyway. As an operational planner, I learned the difference between taking risks and taking gambles. This decision looks a lot more like a gamble. We rolled the dice that these Chinooks wouldn't face sophisticated surface-to-air missiles, and we lost.
It'd be interesting to see the risk calculus laid out for this decision, and some of the others which have affected Reserve Component (RC) readiness for Iraq. It's one thing to assume manageable levels of risk, i.e. we're not going to field this flare system until the unit is mobilized. It's another to assume away the risk entirely, which is what this situation looks like. I think it's irresponsible to identify a risk and the appropriate control measure for that risk, but then ignore the problem because of external fiscal constraints. The problem doesn't go away -- it just lurks around until the situation is ripe. Somewhere, this issue should have been inserted into an operational plan or a mobilization plan so that the Chinook unit was retrofitted with these flare devices before deployment to Iraq.
There are some things we can chalk up to budgetary constraints and fiscal realities; there are others that we can chalk up to bad priorities. This flare issue probably falls in the first category. Other issues, like the failure to field SINCGARS radios to RC units or the failure to field Interceptor body armor, fall in the "bad priorities" category. I *do* think it's derelict that we've let RC equipment fall so far behind Active Component (AC) equipment, but that we're pouring money into future-force projects like the Future Combat System. That's a case of bad priorities in my book. We can't afford to neglect the current fight in order to do R&D for the future fight. As it is, our force is one generation ahead of our allies, let alone our enemies. What's needed now is recapitalization and reinvestment in our current force, so that it has what it needs to get the job done in Iraq.
Also, I think this is another symptom of our mass-mobilization mentality (hat tip to Don Vandergriff and his work in Path to Victory for teaching me about this). If we were fighting WWIII and we had some mobilization time for the RC units, then theoretically, we could jumpstart our production lines and pour money into the defense industry in order to produce these things. The Pentagon could buy all the body armor, up-armored HMMWVs, desert BDUs, and other items it needs to outfit units on their way to Iraq. But that time doesn't exist for this war, because we've mobilized a lot of these units on short notice to meet a pressing need in Iraq. There just wasn't time to re-equip, re-train, and prepare units for deployment the way our doctrine was written. If they were lucky, they got a few days at the mob station, and that was it.
Unfortunately, it took a catastrophic tragedy like the Chinook shootdown to illuminate this problem. I'll bet there were lots of officers who knew about this issue, especially the pilots and commanders of this reserve Chinook unit in Iraq. But they weren't listened to until the consequences of this risk became known. Now, hopefully, their voices will be listened to.
Monday, December 29, 2003
The men of Charlie Company
Ron Martz, who went to war as an embedded journalist with the 3rd Infantry Division, has a great series in today's Atlanta Journal-Constitution on the men of Charlie Company, 1-64 Armor, and their experiences since coming home from the war in Iraq. The series also includes Mr. Martz' articles from Iraq. These two series are some of the best war reporting I've seen, right up there with John Burns (NYT), Rick Atkinson and William Branigin (WP), and David Zucchino (LAT). Great job -- definitely worth a read.
Army re-adopts stop loss
Policy prevents discharges, reassignments; breeds resentment
The Washington Post reports this morning that the Army has reinstituted a policy known as "stop loss", whereby soldiers with discharge or retirement plans are kept in the service by force of law. The policy is intended to help the Army keep key people at a critical time, such as those assigned to a unit on the deployment list for Iraq. But when applied, it causes great resentment among soldiers and families, who feel as if the government reneged on its enlistment contract.
Chief Warrant Officer Ronald Eagle, an expert on enemy targeting, served 20 years in the military -- 10 years of active duty in the Air Force, another 10 in the West Virginia National Guard. Then he decided enough was enough. He owned a promising new aircraft-maintenance business, and it needed his attention. His retirement date was set for last February.Analysis: First, a note on these numbers. The Army's "end strength" is capped as a matter of law. Congress authorizes a certain number of soldiers for each service in each year's National Defense Authorization Act. It is illegal for the Pentagon to go over that number, although there are many loopholes. The Army is currently over its end-strength authorization, but that's just half the story. When you include the 155,000+ Army reservists and guardsmen now activated, you get a number closer to 650,000. That's significantly more than the Army's end strength number. Since 9/11, the Army has had tens of thousands of reservists mobilized at any given time. So in reality, the story is much bigger than what the Post is reporting.
Today's Army is stretched to the limit, with more than half of its strength committed to this rotation in Iraq or the next one. "Stop loss" enables the Army to more easily manage its personnel for the Iraq mission, which has placed an immense burden on the Army's personnel system. It's hard to stress just how hard this has been for the military to manage, what with the second and third-order effects on schools, unit manning, retirements, etc. The close cousin of stop-loss, "stop move", has also been put into play. That keeps soldiers in specific units, even if they were slated to be reassigned. This has been used to keep certain units together, such as those now training for deployment to Iraq. Ironically, the two policies have created a de facto system of unit manning, which in many cases has led to better units on the ground in Iraq with more unit cohesion than they might have without stop-loss and stop-move in place.
I think stop loss can be a good tool, but it can also be abused. It's one thing to predict how many new privates you need for a given mission. Recruiting and producing those is comparitively easy, because you can do so with your existing training base -- just a ramp up in production numbers. But you can't produce mid-level sergeants and officers in the same way, nor can you produce the kind of specialized soldiers (e.g. Military Police, Civil Affairs, Special Forces, MI linguists, etc) now needed in Iraq and Afghanistan. Producing those soldiers takes years, and it would have been practically impossible to forecast the needs for those 5-10 years ago in order to have enough of them right now.
If I were in the Army's shop for Manpower & Reserve Affairs, I'd be very judicious about the way I used "stop loss" and "stop move". Each of these devices is a good short-term fix, but it creates enormous secondary and tertiary problems for the Army. As the Post's article says, soldiers often decide to get out because of heavy-handed policies like this, and the Army may create another exodus of mid-level talent (circa 1999-2001) if it uses these tools too much. This will hurt the reserves the most, I think, because those soldiers face the most turbulent change when they're mobilized and deployed (vice active-duty soldiers who don't have to leave their jobs). And we have a lot of reservists involved in this mission -- so many, in fact, that many state governors are concerned their National Guards lack the domestic capacity to respond to disasters and other state missions.
Bottom Line: The Army can't afford to just manage its personnel in order to fight this war. It must manage its personnel well enough to leave the Army ready to fight the next war, wherever that may be. One captain in the Army's personnel headquarters told me recently that a general officer bellowed "We're at war -- nothing else matters" to his staff when they brought up some of these long-term issues. That kind of thinking won't work for the Army if it wants to be ready for the next war. It must consider the long-term effects of its current policies on its personnel, or else there won't be a trained and ready Army for the next war.
Sunday, December 28, 2003
Is anthrax still a threat?
Judge halts military vaccination program, while experts say the bug still threaten the civilian population
Thankfully, it's been a while since bacillus anthracis dominated the news. But this week, U.S. District Judge Emmet Sullivan enjoined the American military from inoculating its personnel against anthrax, saying that the President had not signed a special finding necessary to require mandatory inoculations. (Full disclosure: I got the anthrax vaccine in 1998 and I think it's perfectly safe.) The essence of the case was a challenge to the military's mandatory inoculation policy, which was improper given the lack of a full FDA license for the vaccine.
In blocking mandatory anthrax inoculations until a full trial can be held on the matter, U.S. District Judge Emmet G. Sullivan agreed with the contention by six unnamed Defense Department plaintiffs that the anthrax vaccine is an experimental drug "being used for an unapproved purpose" -- namely, for exposure to airborne anthrax as well as exposure through the skin. As such, he ruled, it cannot under federal law be administered to service members on a mandatory basis.The next day, the Pentagon fired back at Judge Sullivan with a press conference on the safety and necessity of the anthrax vaccine. The Justice Department, on behalf of the Pentagon, has also filed a motion to clarify the judge's ruling on procedural grounds. If successful, the Pentagon could limit the ruling to just the six plaintiffs in the case, because a formal plaintiff class was not certified in accordance with the Federal Rules of Civil Procedure.
. . . at a Pentagon briefing called to rebut Sullivan's findings, William Winkenwerder Jr., assistant secretary of defense for health affairs, took strong exception to Sullivan's finding that troops receiving the anthrax vaccine were being used as "guinea pigs."And in Sunday's New York Times, we have an article by Judith Miller, co-author of Germs, on the continuing danger posed by anthrax to the American population. Ms. Miller's reporting on WMD in Iraq has been criticized lately for a variety of reasons, but I've found her writing on biological warfare generally to be quite good. Here's what she has to say:
One indication of concern was a secret cabinet-level "tabletop" exercise conducted last month that simulated the simultaneous release of anthrax in different types of aerosols in several American cities.Analysis: Anthrax, and bioterrorism, is probably still a threat to the American population. To the extent that we will deploy our military against enemies who have anthrax in their arsenal, it's still a threat to our military. Collectively, I think we've forgotten how big of a threat exists from biological and chemical terrorism. These weapons are all too easy to make and deploy, and we don't have the best tools in place to counteract them. I think we've invested an awful lot in making our airports and airplanes safe against the last attack, but that enormous outlay of resources was probably wasted. Instead, I think we should have concentrated more resources against this next threat, and the various means (detection, vaccination, treatment, etc) for defeating it.
12/31 Update: The New York Times reports that the FDA has approved the anthrax vaccine used by the military for use against inhaled anthrax, with language that's clearly directed to persuade Judge Sullivan to lift his injunction.
Friday, December 26, 2003
Combat or crime?
Which paradigm should apply in the war on terror?
Kenneth Roth, executive director of Human Rights Watch, poses this question and others in an essay which appears in the Jan/Feb 2004 edition of Foreign Affairs. Mr. Roth argues that America has waged a metaphorical war on terrorism without necessarily meeting all of the requirements for such a war, and that we have abused many domestic and international norms of law in the process. Mr. Roth's argument is the latest in a chorus of such arguments from legal scholars such as Laurence Tribe, David Cole, and Kathleen Sullivan. Here's a brief excerpt from the piece:
What are the boundaries of the Bush administration's "war on terrorism?" The recent battles fought against the Afghan and Iraqi governments were classic wars between organized military forces. But President George W. Bush has suggested that his campaign against terrorism goes beyond such conflicts; he said on September 29, 2001, "Our war on terror will be much broader than the battlefields and beachheads of the past. The war will be fought wherever terrorists hide, or run, or plan."Analysis: Mr. Roth states his case well, but I disagree with some of the fundamental assumptions and linkages in his argument. I also disagree with his conclusions, including his three-part test for determining if the laws of war apply.
Here is my response to Mr. Roth's argument (I apologize for the length):
(1) "[President Bush's] language stretches the meaning of the word 'war.'" I don't think so. Historically, "war" has denoted and connoted a broad range of circumstances, from a latent state of war between hostile empires, a particular campaign, or a particular engagement. The word is imprecise because states have waged war in different forms throughout history. In addition to referring to different levels of intensity, "war" refers to different types of conflict -- from wars waged on other states to wars waged on movements. Today, our enemies have declared war on us. (See Al Qaeda's 1998 declaration of holy war against the United States.) Theoretically and practically, it is possible that a state of war exists between the United States and Al Qaeda. But that's really not even required, for as Mr. Roth acknowledges, the laws of war only require that a state of "armed conflict" exist.
The real question is whether a state of armed conflict (or war) can exist between a state (the U.S.) and a non-state actor (Al Qaeda). That's a theoretical question that international lawyers have been puzzling over for some time. Mr. Roth makes a conclusory argument that Al Qaeda's actors look more like criminals, therefore we can't fight a war against this group. I'm not so sure. I think we now face a 4th Generation adversary that disdains the contemporary norms of international relations, and considers definitions like "state" to be irrelevant facets of Western-dominated international law. Whether we label Al Qaeda as a criminal enterprise or warmaking entity, we're pounding a square peg into a round hole. But if we label them a criminal enterprise, then we limit ourselves to the tools of law -- not war. To effectively fight Al Qaeda, we need a multi-faceted approach which incorporates legal, financial, military and intelligence tools. Therefore, we must wage a "war" against this group that enables us to bring those tools to bear.
(2) "In peacetime, governments are bound by strict rules of law enforcement. . . . In times of war, law-enforcement rules are supplemented by a more permissive set of rules: namely, international humanitarian law, which governs conduct during armed conflict." This is a false dichotomy. It uses time as the independent variable to determine which set of rules should apply. First, peace and war are not mutually exclusive -- they can occur simultaneously. Second, peace and war are not binary options, and they never have been. I conceptualize of peace and war as a continuum, which includes various forms of peace and war that blur in the middle. Somewhere in that blurry middle, we can place terrorism, although certain terrorist acts fall closer to the peace end (e.g. kidnapping for ransom) or the war end (e.g. the 9/11 attacks) of the continuum.
Mr. Roth's false dichotomy infects the rest of his argument. His basic argument is that America is not at war, therefore, we should apply the rules of peacetime law enforcement to the conflict. That doesn't pass the common sense test, let alone the intellectual rigor that I would expect from an article in Foreign Affairs. Some legal scholars might say that only a "state of war" can trigger the laws of war, but the international consensus says otherwise. Presumably, Mr. Roth falls into this group. But the international legal consensus is that a de facto state of "armed conflict" triggers the laws of war, not a de jure state of "war." Armed conflict is defined in functional terms, unlike a state of war which is triggered by a formal state of belligerency between two states. It is possible to define peace and war in temporal terms, geographical terms, and situational terms. I wish things were as black and white as Mr. Roth's argument, and that we could easily put things in their "war" and "peace" cubbyhole. But we can't -- we need to adapt rules and norms to fit the gray area that we now find ourselves in: somewhere in between war and peace.
(3) "If law-enforcement rules are used, a mistaken arrest can be rectified at trial. But if war rules apply, the government is never obliged to prove a suspect's guilt. Instead, a supposed terrorist can be held for however long it takes to win the "war" against terrorism. . . . Washington must also remember that its conduct sets an example for governments around the world. " I'm not so sure this argument works. It is important to retain the moral high ground in our war on terrorism. To do so, we must fight according to the laws of war and act in accordance with the U.S. Constitution. But nowhere does the law of war or the U.S. Constitution restrict the ability of the President to fight a just war with just means. To do so would transform both documents into a suicide pact, to use Justice Robert Jackson's oft-cited phrase. The law of war does not strip a state of its sovereign right to fight a war in self-defense, nor does the Constitution do so. Instead, these sources of law constrain the President's abilility to fight a war.
Congress granted the President legal authority after the 9/11 attacks in Public Law 107-40 to wage war against Al Qaeda; it also granted the President the legal authority to wage war on Iraq in Public Law 107-243. Congress has subsequently ratified its grant of power by funding the President's military, legal, financial and intelligence operations. Both the U.N. and NATO blessed the U.S. response to the 9/11 attacks, although some debate exists as to the extent or scope of those authorities.
However, there may be some things we can do better to maintain the moral high ground, and here I think Mr. Roth has a point. Right or wrong, America's treatment of prisoners at Guantanamo Bay has earned the scorn of the international human rights community, as well as most of Europe. America ought to do some things better there, like hold Art. V tribunals for the detainees to decide the issue of formal POW status. Our national decision to ignore the UN Security Council to wage war on Iraq has also earned us scorn from various quarters of the world. This may have been the right decision, but we must recognize that pressing forward in Iraq without UN sanction had a cost in terms of international prestige and legal legitimacy. Terrorism experts such as Rohan Gunaratna, Bruce Hoffman, Ian Lesser, and others have stressed the importance of a global coalition for the global war on terror. Unlike a nation-state, we can only defeat this threat with support from abroad, because it takes such support to track down Al Qaeda's leaders, cripple its finances, hinder its travel, and dismantle its organization. We must hold the moral high ground in order to maintain this support from our allies.
(4) Roth makes several arguments with respect to the detention of enemy combatants, and tries to say that Ex Parte Quirin should not apply to the cases of Hamdi, Padilla and al-Marri who are now being held as such.
- "First, the saboteurs in Quirin were agents of a government -- Germany's -- with which the United States was obviously at war. Whether the United States is actually at "war" with al Qaeda, however, remains uncertain under the law." Maybe... but I think it's pretty clear that we're in a state of armed conflict right now. A formal declaration of war is not necessary for a state of armed conflict, and a state of armed conflict is what is necessary for the laws of war to come into play. Combatant commanders have detained enemy soldiers as prisoners since the classical era, although prisoners were often executed or enslaved in ancient times. Chivalric codes changed this norm somewhat during the middle ages, although prisoners' fates often depended on their rank or class. In the modern era, the law of war has established rules for the capture and treatment of prisoners. But no one has suggested that a combat commander should not have the right to take prisoners, nor has anyone extrapolated that a nation should not be allowed to take prisoners in wartime.
- "Second, although the Court in Quirin defined a combatant as anyone operating with hostile intent behind military lines, the case has arguably been superseded by the 1949 Geneva Conventions (ratified by the United States), which, as noted above, rule that people are combatants only if they either are members of an enemy's armed force or are taking active part in hostilities." This misstates both the holding of Quirin with respect to enemy combatants and the definition of the Geneva Convention, found in Art. IV. In Quirin, the Court distinguishes between lawful combatants and unlawful combatants at page 31:
By universal agreement and practice the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals. See Winthrop, Military Law, 2d Ed., pp. 1196-1197, 1219-1221; Instructions for the Government of Armies of the United States in the Field, approved by the President, General Order No. 100, April 24, 1863, sections IV and V.So Quirin didn't just limit its definition to those who operated with hostile intent behind military lines -- it defined an unlawful enemy combatant as one who did not obey the laws of war. Arguably, a terrorist who deliberately targets non-combatants for a political purpose is violating the laws of war. Also, I think you can analogize Jose Padilla to the German saboteurs in Quirin. Padilla sought to secretly reconnoiter U.S. targets for an Al Qaeda attack using a radiological dispersal device (aka "dirty bomb"). The German saboteurs sought to secretly reconnoiter and destroy various sites on the East Coast. Both disguised themselves as civilians; both sought to target non-combatants; both used their U.S. citizenship and language abilities to blend into the population. It's an imperfect analogy, but a good one in my opinion.
Second, Mr. Roth misstates the 3rd Geneva Convention's definition of a combatant. Art. IV contains several different definitions for a combatant, from members of regular armed forces to members of militias to members of civil defense groups. It's possible here that his editors forced him to oversimply his argument, but the result is an argument that's legally incorrect. Membership in an armed force or active participation in hostilities are part of the GC's Art. IV definition of a combatant -- but there's much more. Membership in a militia group can also make you a combatant; so can passive participation in hostilities, or limited participation. Moreover, the two parts don't have to occur simultaneously. A soldier is a lawful combatant (and therefore a lawful target) whether or not he's actively engaged in hostilities. Mr. Roth's argument only works if he can limit the definition of a combatant to a narrow group. Unfortunately, international law and custom defines a combatant as something much broader.
- "Moreover, Quirin only establishes who can be tried before a military tribunal. The Bush administration, however, has asserted that it has the right to hold Padilla, al-Marri, and other detained 'combatants' without a trial of any kind -- in effect, precluding serious independent assessment of the grounds for potentially lifelong detention." You can't have it both ways, Mr. Roth. At times, your organization and others have criticized the Bush Administration for its 13 Nov 01 order authorizing military tribunals, saying that such tribunals violate international law and U.S. law. Now, you say that Quirin only authorized the U.S. to hold military tribunals, and that such tribunals might be a better alternative to detention for Mr. Padilla and his enemy combatant brethren. Which one is it? I think that Quirin actually opines on both matters -- the definition of a combatant, and the proper disposition (military tribunal and execution) for such. I think it's still unclear whether the U.S. can apply Quirin to the facts of today's combatants, and use Quirin to support military tribunals and executions in these cases. But I'm surprised that Human Rights Watch is so willing to endorse the holding of Quirin.
- "Finally, whereas the government in Quirin was operating under a specific grant of authority from Congress, the Bush administration has acted on its own in taking the difficult decision to treat Padilla and al-Marri as combatants, without allowing the popular input that a legislative debate would provide." In December 1941, Congress declared war on Japan, Germany and Italy. In September 2001, Congress authorized the President to use force against Al Qaeda. The 1941 declaration formally checked the Constitutional box for a declaration of war, under Art. I. But legally, the Supreme Court and courts of appeal have held that a joint resolution of Congress is as good as a declaration of war. (See Doe v. Bush, ___ F. 3d ___ (1st Cir. 2003). So once again, Mr. Roth misstates the law in order to make his point.
(5) "The best way to determine if war rules should apply would be through a three-part test. To invoke war rules, Washington should have to prove, first, that an organized group is directing repeated acts of violence against the United States, its citizens, or its interests with sufficient intensity that it can be fairly recognized as an armed conflict; second, that the suspect is an active member of an opposing armed force or is an active participant in the violence; and, third, that law enforcement means are unavailable."
This test really seems like a threshold test for the conduct of warfare; it establishes criteria by which the U.S. can use the tools of war against a non-state actor like Al Qaeda. Again, I don't think that international law or American law compels such a conclusion. This solution sharply curtails the power of the President to act as Commander-in-Chief, and to take those actions he deems necessary to defend the United States against foreign and domestic threats. I think it's absurd that "Washington should have to prove, first, that an organized group is directing repeated acts of violence against the United States". Why? Why should America suffer repeated blows from an enemy just to make a legal case for its response? Why should we endure more American deaths than we have to? The Constitution doesn't require such action; neither does international law. Indeed, Art. 51 of the UN Charter allows for a response to an armed attack, yet Mr. Roth would constrain such a response.
Second, Mr. Roth's requirement for active membership in an armed force or active participation in violence ignores the nature of the threat we now face. Al Qaeda is not dangerous today because of its zealots who are willing to die for their cause. Al Qaeda is dangerous today because it has established cells and people around the world to provide financial, logistical, infrastructural, legal and organizational support. Without this global network, Al Qaeda is just a bunch of murderous, ideological thugs. America can't afford to limit its response to the actual trigger-pullers (or plane hijackers) in this organization -- we must root out the people who enable Al Qaeda to conduct terror operations around the world.
Finally, Mr. Roth's requirement for the unavailability of law enforcement doesn't make sense. Just as a craftsman employs different tools for different jobs, so too does America employ different tools of state for different enemies. Police officers and FBI agents are appropriate for certain threats, and indeed, for certain parts of the Al Qaeda threat like domestic sympathizers who raise money for the terrorist organization. But military and intelligence tools are appropriate for other parts of the threat, like Al Qaeda's command structure. Mr. Roth would circumscribe the use of those tools to the most narrow of circumstances, and I think that's a very risky thing to do.
Coda: Eugene Volokh cites to a couple of authorities for the well-settled legal proposition that America does not need a formal declaration of war under Art. I of the Constitution to be at war for legal purposes. (I make this point above, but it's always nice to bolster my argument with a note from my Constitutional Law II professor.) Eugene's right both as a matter of domestic law and international law. Domestic law recognizes Congressional joint resolutions as sufficient authority for the President to wage war, and President Bush has two such resolutions (Public Laws 107-40 and 107-243). International law really doesn't care about the distinction, since the laws of war are triggered by the de facto existence of "armed conflict", not the existence of a formal de jure state of war.
Time's person of the year: The American Soldier
A half century after declaring the "American fighting man" its person of the year, the editorial board of Time magazine has decided to honor "The American Soldier" as its person of the year for 2003. Clearly, the war in Iraq has dominated the front pages of American newspapers and magazines. But rather than honor the politicians and generals who commanded the war, Time chose to honor the America's finest sons and daughters who actually did the hard work of fighting the war in Iraq -- as well as the small war in Afghanistan, and the ongoing missions in Bosnia, Kosovo, Korea, and elsewhere.
The main story inside Time magazine follows the survey platoon of HHB 2-3 Field Artillery, 1st Armored Division. Three of its men and women also appear on the front page of the magazine. One event in particular hits the platoon hard: the death of its platoon leader, 2LT Ben Colgan. Today's Los Angeles Times has a feature story on 2LT Colgan's death, and its effect on his family back home. Time reports on this event, and the way the platoon fought back from this tragedy to persevere in its mission.
Unfortunately, the full stories aren't available for free on Time's website. But I think the magazine is a worthwhile read, if you can make it to a newstand to pick it up.
Saturday, December 20, 2003
Happy Holidays -- Intel Dump will take a break from publishing over the next week to enjoy the holiday season with friends and loved ones. Wherever you're at, I hope you enjoy a happy and healthy holiday season too.
Friday, December 19, 2003
A Constitutional clash of epic proportions
Courts, Congress, President battle over power to designate enemy combatants
Yesterday, the Executive Branch lost two key battles in two key courts in its legal war on terrorism. In the first case, Padilla v. Rumsfeld, the 2nd Circuit Court of Appeals effectively told the Administration that it could not hold Jose Padilla as an "unlawful enemy combatant" -- at that it either must charge him in civilian court or release him. In the second case, Gherebi v. Bush, the 9th Circuit Court of Appeals held that federal courts may exercise jurisdiction over detention challenges from prisoners at Guantanamo Bay. Both are separate issues, but together, the impact of this is to seriously impair the Bush Administration's method of detaining and holding prisoners in the war on terrorism. Today, Jess Bravin has a good roundup of the matter in the Wall Street Journal (subscription required), as does Charles Lane in the Washington Post. Here's an excerpt from the WSJ story:
The administration had been scrambling to soften its policy of holding detainees suspected of terrorism indefinitely while denying contact with lawyers or other ordinary aspects of American due process. In the face of mounting criticism at home and abroad, the Defense Department has given three detainees access to lawyers this month, the latest just Thursday as part of proceeding toward a military trial. The U.S. also has reassured some allies that it won't pursue the death penalty against detainees, and told others that those nations may soon take custody of their citizens being held incommunicado at the U.S. detention center in Guantanamo Bay, Cuba.Analysis: These cases are as big as their billing -- they change the legal environment for the way the administration must deal with suspected terrorists and enemy combatants. Indeed, I now have to alter my syllabus for my Law & Terrorism class, because these cases represent such a fundamental reversal from what had been decided at the U.S. District Court level. In essence, the two appeals courts have sharply curtained two aspects of presidential power here -- the power to designate and detain enemy combatants, and the power to hold them in a place where Art. III courts cannot exercise jurisdiction. There has not been as clear of a challenge to executive authority from the courts since 1952, when the Supreme Court overruled then-President Truman's decision to seize steel mills during the Korean War.
The Administration's response has been somewhat predictable -- to criticize both the Gherebi and Padilla rulings, and to say that it will fight both decisions in court. Towards this end, the Justice Department has asked the 2nd Circuit to stay its opinion. (The 9th Circuit already did stay its opinion in anticipation of the Supreme Court's decision in Al-Odah v. United States.) The Justice Department's statement in the Padilla case reflects its likely legal argument to an en banc panel of the 2nd Circuit, and eventually to the Supreme Court:
In times of war, the President must have the authority to act when an individual associated with our nation’s enemies enters our country to endanger American lives. As U.S. Circuit Judge Richard C. Wesley said in dissent, ‘[T]he President, as Commander in Chief, has inherent authority to thwart acts of belligerency on U.S. soil that would cause harm to U.S. citizens, and, in this case, Congress through the Joint Resolution specifically and directly authorized the President to take the actions herein contested.... Congress could not have intended to limit the President’s authority to only those al Qaeda operatives who actually planned or took part in 9-11.... Clearly, Congress recognized that al Qaeda and those who now do its bidding are a continuing threat to the United States.Legal Analysis: There are lots of ways for the court to look at this. It appears from the two orders that this is shaping up as a fight over executive power -- and whether the President may:
- Designate American citizens (and non-citizens) as enemy combatants;
- Detain enemy combatants pursuant to the laws of war, without legal process;
- Deny access to counsel to American citizens held as enemy combatants
- Deny the Art. III courts any sort of judicial review over these decisions; and
- Assert these powers on the basis of Public Law 107-40, the post-9/11 act of Congress authorizing force in response to Al Qaeda's attacks.
There really isn't a lot of precedent out there on this issue. Youngstown, a 50-year-old case, is the Supreme Court's best analysis of executive branch power. Most scholars look to Justice Jackson's influential concurrence in this case for the test of whether an executive action is Constitutional, which Justice Jackson stated this way [See 343 U.S. at 636-38]:
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. 2 In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.So the legal question in this case is whether the President is acting pursuant to a grant of power from Congress (or the Constitutional), in the absence of such authorization, or contrary to an act of Congress. The degree of deference from the Court will depend on the category in which the President's action falls. Obviously, the President contends that he is acting pursuant to P.L. 107-40, and his Art. II authority as Commander-in-Chief, and therefore his actions fall within Justice Jackson's first category. Thus, they deserve deference from the courts. The 2nd Circuit held yesterday that in fact, the President's actions here run afoul of the 1971 Non-Detention Act (codified at 18 U.S.C. 4001), which says that citizens may not be "imprisoned or otherwise detained ... except pursuant to an Act of Congress." Therefore, the President's actions are within Justice Jackson's third category, and thus unconstitutional.
What's the real answer here? I don't know. Legal scholars who are much smarter than me (e.g. David Cole, Laurence Tribe, Kathleen Sullivan, John Yoo, Ruth Wedgwood, and others) have been debating this issue in the law reviews for the past two years. There are good arguments on both sides, and it's pretty close to an indeterminate problem in my opinion. I think the Supreme Court will ultimately decide against the White House because it wants to preserve the institutional balance of powers between three branches. In other words, letting the White House claim all these powers (particularly the absence of judicial review) would let the President expand his power too much, and the courts stand to prevent either political branch from taking that much power. But we'll see what happens when the Supreme Court hears Al-Odah early next year, and if it takes either Padilla or Gherebi on appeal.
Update I: Eugene Volokh, a Constitutional Law expert and law professor at UCLA, analyzes the Padilla v. Rumsfeld opinion on his weblog. Eugene predicts that the Supreme Court will take the case, and that it will side with the dissenter who argued that the Bush Administration's actions are Constitutional because the President had authorization to use force against Al Qaeda pursuant to P.L. 107-40. Eugene's more optimistic than I am about the outcome of this case for the Executive Branch. But given his experience in the field, and clerkship for the U.S. Supreme Court, I'd put money on his prediction before mine.
Update II: Eric Muller, another smart law professor, has some more thoughts on the issue here. He poses an interesting hypothetical: what if Congress had authorized the President to use "military force" against the Medellin drug cartel? Could the President then detain drug lords, drug couriers, drug dealers, and even drug users as "unlawful enemy combatants"? That's the kind of tough hypothetical which the Solicitor General will have to deal with in the Supreme Court, and I'm not sure where to draw the line between problems of law and problems of war. At least, the budding lawyer in me doesn't know where to draw the line -- the soldier in me things in binary terms of shoot/no-shoot.
Update III: Also see this comment on the decisions from Unlearned Hand at En Banc, a group weblog of law students from around the country.