"The Nation will live to regret what the Court has done today."

LAKHDAR BOUMEDIENE, et al., PETITIONERS

06-1195 v.

GEORGE W. BUSH, PRESIDENT OF THE UNITED
STATES, et al.

KHALED A. F. AL ODAH, next friend of FAWZI
KHALID ABDULLAH FAHAD AL ODAH, et al.,
PETITIONERS

06-1196 v.

UNITED STATES et al.

on writs of certiorari to the united states court of
appeals for the district of columbia circuit

[June 12, 2008]


Justice Scalia, with whom The Chief Justice, Justice Thomas, and Justice Alito join, dissenting.

Today, for the first time in our Nation's history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war. The Chief Justice's dissent, which I join, shows that the procedures prescribed by Congress in the Detainee Treatment Act provide the essential protections that habeas corpus guarantees; there has thus been no suspension of the writ, and no basis exists for judicial intervention beyond what the Act allows. My problem with today's opinion is more fundamental still: The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court's intervention in this military matter is entirely ultra vires.

I shall devote most of what will be a lengthy opinion to the legal errors contained in the opinion of the Court. Contrary to my usual practice, however, I think it appropriate to begin with a description of the disastrous consequences of what the Court has done today.

I

America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen. See National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, pp. 60-61, 70, 190 (2004). On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D. C., and 40 in Pennsylvania. See id., at 552, n. 9. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one. Our Armed Forces are now in the field against the enemy, in Afghanistan and Iraq. Last week, 13 of our countrymen in arms were killed.

The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court's blatant abandonment of such a principle that produces the decision today. The President relied on our settled precedent in Johnson v. Eisentrager, 339 U. S. 763 (1950), when he established the prison at Guantanamo Bay for enemy aliens. Citing that case, the President's Office of Legal Counsel advised him "that the great weight of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at [Guantanamo Bay]." Memorandum from Patrick F. Philbin and John C. Yoo, Deputy Assistant Attorneys General, Office of Legal Counsel, to William J. Haynes II, General Counsel, Dept. of Defense (Dec. 28, 2001). Had the law been otherwise, the military surely would not have transported prisoners there, but would have kept them in Afghanistan, transferred them to another of our foreign military bases, or turned them over to allies for detention. Those other facilities might well have been worse for the detainees themselves.

In the long term, then, the Court's decision today accomplishes little, except perhaps to reduce the well-being of enemy combatants that the Court ostensibly seeks to protect. In the short term, however, the decision is devastating. At least 30 of those prisoners hitherto released from Guantanamo Bay have returned to the battlefield. See S. Rep. No. 110-90, pt. 7, p. 13 (2007) (Minority Views of Sens. Kyl, Sessions, Graham, Cornyn, and Coburn) (hereinafter Minority Report). Some have been captured or killed. See ibid.; see also Mintz, Released Detainees Rejoining the Fight, Washington Post, Oct. 22, 2004, pp. A1, A12. But others have succeeded in carrying on their atrocities against innocent civilians. In one case, a detainee released from Guantanamo Bay masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes. See Khan & Lancaster, Pakistanis Rescue Hostage; 2nd Dies, Washington Post, Oct. 15, 2004, p. A18. Another former detainee promptly resumed his post as a senior Taliban commander and murdered a United Nations engineer and three Afghan soldiers. Mintz, supra. Still another murdered an Afghan judge. See Minority Report 13. It was reported only last month that a released detainee carried out a suicide bombing against Iraqi soldiers in Mosul, Iraq. See White, Ex-Guantanamo Detainee Joined Iraq Suicide Attack, Washington Post, May 8, 2008, p. A18.

These, mind you, were detainees whom the military had concluded were not enemy combatants. Their return to the kill illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection. Astoundingly, the Court today raises the bar, requiring military officials to appear before civilian courts and defend their decisions under procedural and evidentiary rules that go beyond what Congress has specified. As The Chief Justice's dissent makes clear, we have no idea what those procedural and evidentiary rules are, but they will be determined by civil courts and (in the Court's contemplation at least) will be more detainee-friendly than those now applied, since otherwise there would no reason to hold the congressionally prescribed procedures unconstitutional. If they impose a higher standard of proof (from foreign battlefields) than the current procedures require, the number of the enemy returned to combat will obviously increase.

But even when the military has evidence that it can bring forward, it is often foolhardy to release that evidence to the attorneys representing our enemies. And one escalation of procedures that the Court is clear about is affording the detainees increased access to witnesses (perhaps troops serving in Afghanistan?) and to classified information. See ante, at 54-55. During the 1995 prosecution of Omar Abdel Rahman, federal prosecutors gave the names of 200 unindicted co-conspirators to the "Blind Sheik's" defense lawyers; that information was in the hands of Osama Bin Laden within two weeks. See Minority Report 14-15. In another case, trial testimony revealed to the enemy that the United States had been monitoring their cellular network, whereupon they promptly stopped using it, enabling more of them to evade capture and continue their atrocities. See id., at 15.

And today it is not just the military that the Court elbows aside. A mere two Terms ago in Hamdan v. Rumsfeld, 548 U. S. 557 (2006), when the Court held (quite amazingly) that the Detainee Treatment Act of 2005 had not stripped habeas jurisdiction over Guantanamo petitioners' claims, four Members of today's five-Justice majority joined an opinion saying the following:

"Nothing prevents the President from returning to Congress to seek the authority [for trial by military commission] he believes necessary.

"Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation's ability to deal with danger. To the contrary, that insistence strengthens the Nation's ability to determine--through democratic means--how best to do so. The Constitution places its faith in those democratic means." Id., at 636 (Breyer, J., concurring).1

Turns out they were just kidding. For in response, Congress, at the President's request, quickly enacted the Military Commissions Act, emphatically reasserting that it did not want these prisoners filing habeas petitions. It is therefore clear that Congress and the Executive--both political branches--have determined that limiting the role of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting. As the Solicitor General argued, "the Military Commissions Act and the Detainee Treatment Act ... represent an effort by the political branches to strike an appropriate balance between the need to preserve liberty and the need to accommodate the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States." Brief for Respondents 10-11 (internal quotation marks omitted).

But it does not matter. The Court today decrees that no good reason to accept the judgment of the other two branches is "apparent." Ante, at 40. "The Government," it declares, "presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees' claims." Id., at 39. What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today's opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.

II

A

The Suspension Clause of the Constitution provides: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Art. I, §9, cl. 2. As a court of law operating under a written Constitution, our role is to determine whether there is a conflict between that Clause and the Military Commissions Act. A conflict arises only if the Suspension Clause preserves the privilege of the writ for aliens held by the United States military as enemy combatants at the base in Guantanamo Bay, located within the sovereign territory of Cuba.

We have frequently stated that we owe great deference to Congress's view that a law it has passed is constitutional. See, e.g., Department of Labor v. Triplett, 494 U. S. 715, 721 (1990); United States v. National Dairy Products Corp., 372 U. S. 29, 32 (1963); see also American Communications Assn. v. Douds, 339 U. S. 382, 435 (1950) (Jackson, J., concurring in part and dissenting in part). That is especially so in the area of foreign and military affairs; "perhaps in no other area has the Court accorded Congress greater deference." Rostker v. Goldberg, 453 U. S. 57, 64-65 (1981). Indeed, we accord great deference even when the President acts alone in this area. See Department of Navy v. Egan, 484 U. S. 518, 529-530 (1988); Regan v. Wald, 468 U. S. 222, 243 (1984).

In light of those principles of deference, the Court's conclusion that "the common law [does not] yiel[d] a definite answer to the questions before us," ante, at 22, leaves it no choice but to affirm the Court of Appeals. The writ as preserved in the Constitution could not possibly extend farther than the common law provided when that Clause was written. See Part III, infra. The Court admits that it cannot determine whether the writ historically extended to aliens held abroad, and it concedes (necessarily) that Guantanamo Bay lies outside the sovereign territory of the United States. See ante, at 22-23; Rasul v. Bush, 542 U. S. 466, 500-501 (2004) (Scalia, J., dissenting). Together, these two concessions establish that it is (in the Court's view) perfectly ambiguous whether the common-law writ would have provided a remedy for these petitioners. If that is so, the Court has no basis to strike down the Military Commissions Act, and must leave undisturbed the considered judgment of the coequal branches.2

How, then, does the Court weave a clear constitutional prohibition out of pure interpretive equipoise? The Court resorts to "fundamental separation-of-powers principles" to interpret the Suspension Clause. Ante, at 25. According to the Court, because "the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers," the test of its extraterritorial reach "must not be subject to manipulation by those whose power it is designed to restrain." Ante, at 36.

That approach distorts the nature of the separation of powers and its role in the constitutional structure. The "fundamental separation-of-powers principles" that the Constitution embodies are to be derived not from some judicially imagined matrix, but from the sum total of the individual separation-of-powers provisions that the Constitution sets forth. Only by considering them one-by-one does the full shape of the Constitution's separation-of-powers principles emerge. It is nonsensical to interpret those provisions themselves in light of some general "separation-of-powers principles" dreamed up by the Court. Rather, they must be interpreted to mean what they were understood to mean when the people ratified them. And if the understood scope of the writ of habeas corpus was "designed to restrain" (as the Court says) the actions of the Executive, the understood limits upon that scope were (as the Court seems not to grasp) just as much "designed to restrain" the incursions of the Third Branch. "Manipulation" of the territorial reach of the writ by the Judiciary poses just as much a threat to the proper separation of powers as "manipulation" by the Executive. As I will show below, manipulation is what is afoot here. The understood limits upon the writ deny our jurisdiction over the habeas petitions brought by these enemy aliens, and entrust the President with the crucial wartime determinations about their status and continued confinement.

B

The Court purports to derive from our precedents a "functional" test for the extraterritorial reach of the writ, ante, at 34, which shows that the Military Commissions Act unconstitutionally restricts the scope of habeas. That is remarkable because the most pertinent of those precedents, Johnson v. Eisentrager, 339 U. S. 763, conclusively establishes the opposite. There we were confronted with the claims of 21 Germans held at Landsberg Prison, an American military facility located in the American Zone of occupation in postwar Germany. They had been captured in China, and an American military commission sitting there had convicted them of war crimes--collaborating with the Japanese after Germany's surrender. Id., at 765-766. Like the petitioners here, the Germans claimed that their detentions violated the Constitution and international law, and sought a writ of habeas corpus. Writing for the Court, Justice Jackson held that American courts lacked habeas jurisdiction:

"We are cited to [sic] no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes." Id., at 768.

Justice Jackson then elaborated on the historical scope of the writ:

"The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society... .

"But, in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act." Id., at 770-771.

Lest there be any doubt about the primacy of territorial sovereignty in determining the jurisdiction of a habeas court over an alien, Justice Jackson distinguished two cases in which aliens had been permitted to seek habeas relief, on the ground that the prisoners in those cases were in custody within the sovereign territory of the United States. Id., at 779-780 (discussing Ex parte Quirin, 317 U. S. 1 (1942), and In re Yamashita, 327 U. S. 1 (1946)). "By reason of our sovereignty at that time over [the Philippines]," Jackson wrote, "Yamashita stood much as did Quirin before American courts." 339 U. S., at 780.

Eisentrager thus held--held beyond any doubt--that the Constitution does not ensure habeas for aliens held by the United States in areas over which our Government is not sovereign.3

The Court would have us believe that Eisentrager rested on "[p]ractical considerations," such as the "difficulties of ordering the Government to produce the prisoners in a habeas corpus proceeding." Ante, at 32. Formal sovereignty, says the Court, is merely one consideration "that bears upon which constitutional guarantees apply" in a given location. Ante, at 34. This is a sheer rewriting of the case. Eisentrager mentioned practical concerns, to be sure--but not for the purpose of determining under what circumstances American courts could issue writs of habeas corpus for aliens abroad. It cited them to support its holding that the Constitution does not empower courts to issue writs of habeas corpus to aliens abroad in any circumstances. As Justice Black accurately said in dissent, "the Court's opinion inescapably denies courts power to afford the least bit of protection for any alien who is subject to our occupation government abroad, even if he is neither enemy nor belligerent and even after peace is officially declared." 339 U. S., at 796.

The Court also tries to change Eisentrager into a "functional" test by quoting a paragraph that lists the characteristics of the German petitioners:

"To support [the] assumption [of a constitutional right to habeas corpus] we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States." Id., at 777 (quoted in part, ante, at 36).

But that paragraph is introduced by a sentence stating that "[t]he foregoing demonstrates how much further we must go if we are to invest these enemy aliens, resident, captured and imprisoned abroad, with standing to demand access to our courts." 339 U. S., at 777 (emphasis added). How much further than what? Further than the rule set forth in the prior section of the opinion, which said that "in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien's presence within its territorial jurisdiction that gave the Judiciary power to act." Id., at 771. In other words, the characteristics of the German prisoners were set forth, not in application of some "functional" test, but to show that the case before the Court represented an a fortiori application of the ordinary rule. That is reaffirmed by the sentences that immediately follow the listing of the Germans' characteristics:

"We have pointed out that the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States." Id., at 777-778.

Eisentrager nowhere mentions a "functional" test, and the notion that it is based upon such a principle is patently false.4

The Court also reasons that Eisentrager must be read as a "functional" opinion because of our prior decisions in the Insular Cases. See ante, at 26-29. It cites our statement in Balzac v. Porto Rico, 258 U. S. 298, 312 (1922), that " 'the real issue in the Insular Cases was not whether the Constitution extended to the Philippines or Porto Rico when we went there, but which of its provisions were applicable by way of limitation upon the exercise of executive and legislative power in dealing with new conditions and requirements.' " Ante, at 28. But the Court conveniently omits Balzac's predicate to that statement: "The Constitution of the United States is in force in Porto Rico as it is wherever and whenever the sovereign power of that government is exerted." 258 U. S., at 312 (emphasis added). The Insular Cases all concerned territories acquired by Congress under its Article IV authority and indisputably part of the sovereign territory of the United States. See United States v. Verdugo-Urquidez, 494 U. S. 259, 268 (1990); Reid v. Covert, 354 U. S. 1, 13 (1957) (plurality opinion of Black, J.). None of the Insular Cases stands for the proposition that aliens located outside U. S. sovereign territory have constitutional rights, and Eisentrager held just the opposite with respect to habeas corpus. As I have said, Eisentrager distinguished Yamashita on the ground of "our sovereignty [over the Philippines]," 339 U. S., at 780.

The Court also relies on the "[p]ractical considerations" that influenced our decision in Reid v. Covert, supra. See ante, at 29-32. But all the Justices in the majority except Justice Frankfurter limited their analysis to the rights of citizens abroad. See Reid, supra, at 5-6 (plurality opinion of Black, J.); id., at 74-75 (Harlan, J., concurring in result). (Frankfurter limited his analysis to the even narrower class of civilian dependents of American military personnel abroad, see id., at 45 (opinion concurring in result).) In trying to wring some kind of support out of Reid for today's novel holding, the Court resorts to a chain of logic that does not hold. The members of the Reid majority, the Court says, were divided over whether In re Ross, 140 U. S. 453 (1891), which had (according to the Court) held that under certain circumstances American citizens abroad do not have indictment and jury-trial rights, should be overruled. In the Court's view, the Reid plurality would have overruled Ross, but Justices Frankfurter and Harlan preferred to distinguish it. The upshot: "If citizenship had been the only relevant factor in the case, it would have been necessary for the Court to overturn Ross, something Justices Harlan and Frankfurter were unwilling to do." Ante, at 32. What, exactly, is this point supposed to prove? To say that "practical considerations" determine the precise content of the constitutional protections American citizens enjoy when they are abroad is quite different from saying that "practical considerations" determine whether aliens abroad enjoy any constitutional protections whatever, including habeas. In other words, merely because citizenship is not a sufficient factor to extend constitutional rights abroad does not mean that it is not a necessary one.

The Court tries to reconcile Eisentrager with its holding today by pointing out that in postwar Germany, the United States was "answerable to its Allies" and did not "pla[n] a long-term occupation." Ante, at 38, 39. Those factors were not mentioned in Eisentrager. Worse still, it is impossible to see how they relate to the Court's asserted purpose in creating this "functional" test--namely, to ensure a judicial inquiry into detention and prevent the political branches from acting with impunity. Can it possibly be that the Court trusts the political branches more when they are beholden to foreign powers than when they act alone?

After transforming the a fortiori elements discussed above into a "functional" test, the Court is still left with the difficulty that most of those elements exist here as well with regard to all the detainees. To make the application of the newly crafted "functional" test produce a different result in the present cases, the Court must rely upon factors (d) and (e): The Germans had been tried by a military commission for violations of the laws of war; the present petitioners, by contrast, have been tried by a Combatant Status Review Tribunal (CSRT) whose procedural protections, according to the Court's ipse dixit, "fall well short of the procedures and adversarial mechanisms that would eliminate the need for habeas corpus review." Ante, at 37. But no one looking for "functional" equivalents would put Eisentrager and the present cases in the same category, much less place the present cases in a preferred category. The difference between them cries out for lesser procedures in the present cases. The prisoners in Eisentrager were prosecuted for crimes after the cessation of hostilities; the prisoners here are enemy combatants detained during an ongoing conflict. See Hamdi v. Rumsfeld, 542 U. S. 507, 538 (2004) (plurality opinion) (suggesting, as an adequate substitute for habeas corpus, the use of a tribunal akin to a CSRT to authorize the detention of American citizens as enemy combatants during the course of the present conflict).

The category of prisoner comparable to these detainees are not the Eisentrager criminal defendants, but the more than 400,000 prisoners of war detained in the United States alone during World War II. Not a single one was accorded the right to have his detention validated by a habeas corpus action in federal court--and that despite the fact that they were present on U. S. soil. See Bradley, The Military Commissions Act, Habeas Corpus, and the Geneva Conventions, 101 Am. J. Int'l L. 322, 338 (2007). The Court's analysis produces a crazy result: Whereas those convicted and sentenced to death for war crimes are without judicial remedy, all enemy combatants detained during a war, at least insofar as they are confined in an area away from the battlefield over which the United States exercises "absolute and indefinite" control, may seek a writ of habeas corpus in federal court. And, as an even more bizarre implication from the Court's reasoning, those prisoners whom the military plans to try by full-dress Commission at a future date may file habeas petitions and secure release before their trials take place.

There is simply no support for the Court's assertion that constitutional rights extend to aliens held outside U. S. sovereign territory, see Verdugo-Urquidez, 494 U. S., at 271, and Eisentrager could not be clearer that the privilege of habeas corpus does not extend to aliens abroad. By blatantly distorting Eisentrager, the Court avoids the difficulty of explaining why it should be overruled. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 854-855 (1992) (identifying stare decisis factors). The rule that aliens abroad are not constitutionally entitled to habeas corpus has not proved unworkable in practice; if anything, it is the Court's "functional" test that does not (and never will) provide clear guidance for the future. Eisentrager forms a coherent whole with the accepted proposition that aliens abroad have no substantive rights under our Constitution. Since it was announced, no relevant factual premises have changed. It has engendered considerable reliance on the part of our military. And, as the Court acknowledges, text and history do not clearly compel a contrary ruling. It is a sad day for the rule of law when such an important constitutional precedent is discarded without an apologia, much less an apology.

C

What drives today's decision is neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judicial supremacy. The Court says that if the extraterritorial applicability of the Suspension Clause turned on formal notions of sovereignty, "it would be possible for the political branches to govern without legal constraint" in areas beyond the sovereign territory of the United States. Ante, at 35. That cannot be, the Court says, because it is the duty of this Court to say what the law is. Id., at 35-36. It would be difficult to imagine a more question-begging analysis. "The very foundation of the power of the federal courts to declare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies properly before them." United States v. Raines, 362 U. S. 17, 20-21 (1960) (citing Marbury v. Madison, 1 Cranch 137 (1803); emphasis added). Our power "to say what the law is" is circumscribed by the limits of our statutorily and constitutionally conferred jurisdiction. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 573-578 (1992). And that is precisely the question in these cases: whether the Constitution confers habeas jurisdiction on federal courts to decide petitioners' claims. It is both irrational and arrogant to say that the answer must be yes, because otherwise we would not be supreme.

But so long as there are some places to which habeas does not run--so long as the Court's new "functional" test will not be satisfied in every case--then there will be circumstances in which "it would be possible for the political branches to govern without legal constraint." Or, to put it more impartially, areas in which the legal determinations of the other branches will be (shudder!) supreme. In other words, judicial supremacy is not really assured by the constitutional rule that the Court creates. The gap between rationale and rule leads me to conclude that the Court's ultimate, unexpressed goal is to preserve the power to review the confinement of enemy prisoners held by the Executive anywhere in the world. The "functional" test usefully evades the precedential landmine of Eisentrager but is so inherently subjective that it clears a wide path for the Court to traverse in the years to come.

III

Putting aside the conclusive precedent of Eisentrager, it is clear that the original understanding of the Suspension Clause was that habeas corpus was not available to aliens abroad, as Judge Randolph's thorough opinion for the court below detailed. See 476 F. 3d 981, 988-990 (CADC 2007).

The Suspension Clause reads: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U. S. Const., Art. I, §9, cl. 2. The proper course of constitutional interpretation is to give the text the meaning it was understood to have at the time of its adoption by the people. See, e.g., Crawford v. Washington, 541 U. S. 36, 54 (2004). That course is especially demanded when (as here) the Constitution limits the power of Congress to infringe upon a pre-existing common-law right. The nature of the writ of habeas corpus that cannot be suspended must be defined by the common-law writ that was available at the time of the founding. See McNally v. Hill, 293 U. S. 131, 135-136 (1934); see also INS v. St. Cyr, 533 U. S. 289, 342 (2001) (Scalia, J., dissenting); D'Oench, Duhme & Co. v. FDIC, 315 U. S. 447, 471, n. 9 (1942) (Jackson, J., concurring).

It is entirely clear that, at English common law, the writ of habeas corpus did not extend beyond the sovereign territory of the Crown. To be sure, the writ had an "extraordinary territorial ambit," because it was a so-called "prerogative writ," which, unlike other writs, could extend beyond the realm of England to other places where the Crown was sovereign. R. Sharpe, The Law of Habeas Corpus 188 (2d ed. 1989) (hereinafter Sharpe); see also Note on the Power of the English Courts to Issue the Writ of Habeas to Places Within the Dominions of the Crown, But Out of England, and On the Position of Scotland in Relation to that Power, 8 Jurid. Rev. 157 (1896) (hereinafter Note on Habeas); King v. Cowle, 2 Burr. 834, 855-856, 97 Eng. Rep. 587, 599 (K. B. 1759).

But prerogative writs could not issue to foreign countries, even for British subjects; they were confined to the King's dominions--those areas over which the Crown was sovereign. See Sharpe 188; 2 R. Chambers, A Course of Lectures on the English Law 1767-1773, pp. 7-8 (Curley ed. 1986); 3 W. Blackstone, Commentaries on the Laws of England 131 (1768) (hereinafter Blackstone). Thus, the writ has never extended to Scotland, which, although united to England when James I succeeded to the English throne in 1603, was considered a foreign dominion under a different Crown--that of the King of Scotland. Sharpe 191; Note on Habeas 158.5 That is why Lord Mansfield wrote that "[t]o foreign dominions, which belong to a prince who succeeds to the throne of England, this Court has no power to send any writ of any kind. We cannot send a habeas corpus to Scotland . . . ." Cowle, supra, at 856, 97 Eng. Rep., at 599-600.

The common-law writ was codified by the Habeas Corpus Act of 1679, which "stood alongside Magna Charta and the English Bill of Rights of 1689 as a towering common law lighthouse of liberty--a beacon by which framing lawyers in America consciously steered their course." Amar, Sixth Amendment First Principles, 84 Geo. L. J. 641, 663 (1996). The writ was established in the Colonies beginning in the 1690's and at least one colony adopted the 1679 Act almost verbatim. See Dept. of Political Science, Okla. State Univ., Research Reports, No. 1, R. Walker, The American Reception of the Writ of Liberty 12-16 (1961). Section XI of the Act stated where the writ could run. It "may be directed and run into any county palatine, the cinque-ports, or other privileged places within the kingdom of England, dominion of Wales, or town of Berwick upon Tweed, and the islands of Jersey or Guernsey." 31 Car. 2, ch. 2. The cinque-ports and county palatine were so-called "exempt jurisdictions"--franchises granted by the Crown in which local authorities would manage municipal affairs, including the court system, but over which the Crown maintained ultimate sovereignty. See 3 Blackstone 78-79. The other places listed--Wales, Berwick-upon-Tweed, Jersey, and Guernsey--were territories of the Crown even though not part England proper. See Cowle, supra, at 853-854, 97 Eng. Rep., at 598 (Wales and Berwick-upon-Tweed); 1 Blackstone 104 (Jersey and Guernsey); Sharpe 192 (same).

The Act did not extend the writ elsewhere, even though the existence of other places to which British prisoners could be sent was recognized by the Act. The possibility of evading judicial review through such spiriting-away was eliminated, not by expanding the writ abroad, but by forbidding (in Article XII of the Act) the shipment of prisoners to places where the writ did not run or where its execution would be difficult. See 31 Car. 2, ch. 2; see generally Nutting, The Most Wholesome Law--The Habeas Corpus Act of 1679, 65 Am. Hist. Rev. 527 (1960).

The Habeas Corpus Act, then, confirms the consensus view of scholars and jurists that the writ did not run outside the sovereign territory of the Crown. The Court says that the idea that "jurisdiction followed the King's officers" is an equally credible view. Ante, at 16. It is not credible at all. The only support the Court cites for it is a page in Boumediene's brief, which in turn cites this Court's dicta in Rasul, 542 U. S., at 482, mischaracterizing Lord Mansfield's statement that the writ ran to any place that was "under the subjection of the Crown," Cowle, supra, at 856, 97 Eng. Rep., at 599. It is clear that Lord Mansfield was saying that the writ extended outside the realm of England proper, not outside the sovereign territory of the Crown.6

The Court dismisses the example of Scotland on the grounds that Scotland had its own judicial system and that the writ could not, as a practical matter, have been enforced there. Ante, at 20. Those explanations are totally unpersuasive. The existence of a separate court system was never a basis for denying the power of a court to issue the writ. See 9 W. Holdsworth, A History of English Law 124 (3d ed. 1944) (citing Ex parte Anderson, 3 El. and El. 487 (1861)). And as for logistical problems, the same difficulties were present for places like the Channel Islands, where the writ did run. The Court attempts to draw an analogy between the prudential limitations on issuing the writ to such remote areas within the sovereign territory of the Crown and the jurisdictional prohibition on issuing the writ to Scotland. See ante, at 19-20. But the very authority that the Court cites, Lord Mansfield, expressly distinguished between these two concepts, stating that English courts had the "power" to send the writ to places within the Crown's sovereignty, the "only question" being the "propriety," while they had "no power to send any writ of any kind" to Scotland and other "foreign dominions." Cowle, supra, at 856, 97 Eng. Rep., at 599-600. The writ did not run to Scotland because, even after the Union, "Scotland remained a foreign dominion of the prince who succeeded to the English throne," and "union did not extend the prerogative of the English crown to Scotland." Sharpe 191; see also Sir Matthew Hale's The Prerogatives of the King 19 (D. Yale ed. 1976).7

In sum, all available historical evidence points to the conclusion that the writ would not have been available at common law for aliens captured and held outside the sovereign territory of the Crown. Despite three opening briefs, three reply briefs, and support from a legion of amici, petitioners have failed to identify a single case in the history of Anglo-American law that supports their claim to jurisdiction. The Court finds it significant that there is no recorded case denying jurisdiction to such prisoners either. See ante, at 21-22. But a case standing for the remarkable proposition that the writ could issue to a foreign land would surely have been reported, whereas a case denying such a writ for lack of jurisdiction would likely not. At a minimum, the absence of a reported case either way leaves unrefuted the voluminous commentary stating that habeas was confined to the dominions of the Crown.

What history teaches is confirmed by the nature of the limitations that the Constitution places upon suspension of the common-law writ. It can be suspended only "in Cases of Rebellion or Invasion." Art. I, §9, cl. 2. The latter case (invasion) is plainly limited to the territory of the United States; and while it is conceivable that a rebellion could be mounted by American citizens abroad, surely the overwhelming majority of its occurrences would be domestic. If the extraterritorial scope of habeas turned on flexible, "functional" considerations, as the Court holds, why would the Constitution limit its suspension almost entirely to instances of domestic crisis? Surely there is an even greater justification for suspension in foreign lands where the United States might hold prisoners of war during an ongoing conflict. And correspondingly, there is less threat to liberty when the Government suspends the writ's (supposed) application in foreign lands, where even on the most extreme view prisoners are entitled to fewer constitutional rights. It makes no sense, therefore, for the Constitution generally to forbid suspension of the writ abroad if indeed the writ has application there.

It may be objected that the foregoing analysis proves too much, since this Court has already suggested that the writ of habeas corpus does run abroad for the benefit of United States citizens. "[T]he position that United States citizens throughout the world may be entitled to habeas corpus rights ... is precisely the position that this Court adopted in Eisentrager, see 339 U. S., at 769-770, even while holding that aliens abroad did not have habeas corpus rights." Rasul, 542 U. S., at 501, 502 (Scalia, J., dissenting) (emphasis deleted). The reason for that divergence is not difficult to discern. The common-law writ, as received into the law of the new constitutional Republic, took on such changes as were demanded by a system in which rule is derived from the consent of the governed, and in which citizens (not "subjects") are afforded defined protections against the Government. As Justice Story wrote for the Court,

"The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation." Van Ness v. Pacard, 2 Pet. 137, 144 (1829).

See also Hall, The Common Law: An Account of its Reception in the United States, 4 Vand. L. Rev. 791 (1951). It accords with that principle to say, as the plurality opinion said in Reid: "When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land." 354 U. S., at 6; see also Verdugo-Urquidez, 494 U. S., at 269-270. On that analysis, "[t]he distinction between citizens and aliens follows from the undoubted proposition that the Constitution does not create, nor do general principles of law create, any juridical relation between our country and some undefined, limitless class of noncitizens who are beyond our territory." Id., at 275 (Kennedy, J., concurring).

In sum, because I conclude that the text and history of the Suspension Clause provide no basis for our jurisdiction, I would affirm the Court of Appeals even if Eisentrager did not govern these cases.

* * *

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable "functional" test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson's opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.

The Nation will live to regret what the Court has done today. I dissent.

China Hacks Congressional Computers

Representative Frank Wolf, R-Va., said four of his computers were compromised beginning in 2006. New Jersey Representative Chris Smith, a senior Republican on the House Foreign Affairs Committee, said two of the computers at his global human rights subcommittee were attacked in December 2006 and March 2007, according to the AP. More ominously, Wolf stated that after an attack, a car with license plates belonging to Chinese officials went to the home of a dissident in Fairfax County, Va., and photographed it. Simultaneously, the House International Relations Committee--now known as the House Foreign Affairs Committee--was targeted by someone working inside China, said committee spokeswoman Lynne Weil. Moreover, U.S. authorities are investigating whether Chinese officials secretly copied the contents of a government laptop computer during a visit to China by Commerce Secretary Carlos M. Gutierrez. Wolf said he was introducing a House resolution that would help ensure protection for all House computers and information systems; he said Congress should hold hearings, specifically the House Intelligence Committee, Armed Services Committee and Government Operations Committee. Wolf has been outspoken on the subject of violence in the Darfur region of Sudan, where China has major oil interests. Smith has introduced the Global Online Freedom Act which would prohibit U.S. Internet companies from cooperating with countries such as China that restrict information about human rights and democracy on the Internet.

The annual review of the United States government computers and security make for sobering reading. In particular, several government agencies that you would think should be most secure are in not in fact. Rather than approach the hacks, which are not difficult, as a law-breaking issue the U.S. should counter the Chinese efforts in covert actions. The lethargic and tedious law enforcement strategy did not work when confronting the main threat to the U.S. in the 1990s--al-Qaeda--and this effort will not work now. The Air Force has finally and recently developed a Cyber-warfare center and this initiative should move forward with all deliberate speed.

Security concerns about China have arisen before. There was the unsuccessful purchase of 3Com Corporation by a group that included Bain Capital Partners LLC and China-based Huawei Technologies Co., with the latter taking 16.5% of the company. The Committee on Foreign Investment in the U.S., part of the U.S. Department of the Treasury, cited national security concerns and nixed the deal. 3Com products are used by the U.S. Department of Defense and the access that Huawei would then have to those products' specifications.

British Academic Speaks Out Against Poor Muslim Parenting

Graphic source: David Fleming/Telegraph

One of Britain's academics, who directs the Oxford Centre for Islamic Studies, a world-recognized academic centre of excellence associated with Oxford University that attracts visiting scholars from all parts of the Muslim world, has accused British Muslims of failing to ensure that their children learn English and support their education. Dr. Farhan Nizami, Commander of the Order of the British Empire (CBE), noted that the parental failure alienates Muslims from mainstream society and leaves them prone to the appeal of radical Islamic groups.

Nizami should be an inspiration to American academics who often fail to identify the failings of thought systems which are destructive to the country that they inhabit. As one pundit used to say, after the collapse of the Soviet Union, that the only Communists to be found are the ones holding tenure in American Universities. The same point applies today except for the present challenge to liberty posed by contemporary thought systems.

Arabs Slowly Returning to Support Iraq Against Iran

Japan's increasing regional role coupled with Gulf Arabs who eye an elevated role in Iraq in order to counter Shi'ite Iran is a positive regional development. Sunni Arab governments who supported and funded Iraq's 1980-1988 war against Iran have been reticent be get involved but they are currently seeking to increase their involvement with the Shi'ite Iraqi government. No Arab ambassador has been stationed in Iraq since Egypt's envoy was kidnapped and killed shortly after arriving in 2005.
However, United Arab Emirates Foreign Minister Sheikh Abdullah bin Zayed al-Nahayan on Thursday became the first Gulf Arab foreign minister to visit Iraq since the war.
In fact, the UAE, Saudi Arabia, and Bahrain have all recently pledged to reopen their embassies and appoint ambassadors to Baghdad amid U.S. pressure to bolster the Iraqi government. The Gulf Arabs apparently feel that the government has not done enough on political reconciliation, on disarming militias and on bringing back Sunni elements to the ruling structure," stated Christian Koch, Director of International Studies at the Dubai-based Gulf Research Centre.

Japan's Role in Afghanistan to Expand

The DD173 Kongo is equipped with the Aegis combat system. Graphic source: Japan Focus

There is of course not a flood but currently the U.S. welcomes Japan's expanded role in Afghanistan. If Japan's role enlarges this would be an additional country adding themselves to the Coalition. Instead of losing Coalition support, the U.S. appears to be slowly building to include more nations.

Japan would add non-combat troops on the ground, nonetheless, the support and assistance of an important ally would be significant in the region.

Japan's navy currently supports the U.S.-led coalition forces with a refueling mission in the Indian Ocean. Since 911, Japan has been active as part of the “Operation Enduring Freedom - Maritime Interdiction Operations (OEF-MIO).” Japan is also a party to the interdiction of alleged weapons of mass destruction under the US-led Proliferation Security Initiative.

Sheik Vows to Fight Foreign Invader: al-Qaeda

Sheik Ahmed Fateh Khan al-Rishawi at his home near Camp Ramadi on April 14, 2007. Graphic source: Louie Favorite/AJC

Iraqi Sheik Ahmed Fateh Khan al-Rishawi offered to fight Bin Laden and as the hero of Anbar promised he would stir a revolt in Afghanistan. According to a story in The New York Sun the Sheik prepared a 47-page study on Afghanistan and its tribes for the deputy chief of mission at the American embassy in Kabul, Christopher Dell. If asked for military assistance to assist the Americans the Sheik stated: "I have no problem with this; if they ask me, I will do it."

"Al Qaeda is an ideology," Sheik Ahmad said, "We can defeat them inside Iraq and we can defeat them in any country." Ahmad continued: "We have to rebuild a national Iraqi army, not built on sects, but the same way they built up the Anbar police," he said. "They must be well-armed, so they will be able to protect the country and all the American interests in the area. We also have to make a friendship treaty based on mutual respect between the two parties, and then the United States will be able to withdraw from Iraq, if they wish, and we will succeed in Iraq the same way America succeeded in Japan and Germany."

The sheik favored a status-of-forces agreement, something currently being discussed now beteen the two nations. Ahmad stated: "With a diplomatic understanding we will be able to solve all the problems. We fully trust the Americans. We know the United States never in its history occupied a country. On the contrary, they were occupied and they were able to fight the occupier," referring to the American rebellion against the British in 1776.

Pakistan Asks EU to Drop Free Expression

Pakistan is sending a delegation to ask the European Union countries to amend laws regarding freedom of expression in order to prevent offensive statements such as the printing of caricatures of Muhammad and a film by a Dutch legislator. The delegation will point out that the recent attack on the Danish Embassy in Pakistan could be a reaction against free expression. If the EU will not comply, the delegation would also tell the EU that more attacks on the EU diplomatic missions abroad could not be ruled out. Let's see if the EU will cave in on the whole free expression thing if they will not be attacked any more for at least that reason.

England Proactive in Protecting Young Against Al-Qaeda

Graphic source: Wikipedia Commons

Yorkshire is a fairly ordinary and representative area of England but interestingly enough, Al-Qaida is grooming Yorkshire pupils for terrorism. In the classroom, young people are "falling prey to extremists," according to Sir Norman Bettison, chief constable of the West Yorkshire Police, in a story published by the Yorkshire Post. Who would have thought the same general area that spawned the Beatles and rock guitarist, Mick Ronson, would produce AQ?

According to the constable, the force referred at least 10 youngsters, and two of them only 13 years old, to a programme designed to counter those who are prey to radicalism. The kids most prone to extremism are the brightest, those who had just entered senior school, and who had developed a penchent for extremist material from internet chatrooms. The Channel Programme employs five full-time community field officers who talk to kids who demonstrate an unusual interest in violent, extremist material. The programme only began four months ago but it identifies impressionable younger people from 13 to 27 years old. The idea is to get the younger people involved in alternate activities such as sports and it holds classes in citizenship. According to the constable, those engaged in grooming the young people are among the 2,000 suspected terrorists who are being monitored by police and MI5.

The efforts are not confined to terrorist groups but has included any violent extremists. For example, two 13-year-old boys, one Asian and one white, have been identified as reactionary right-wing types.

In England, forty people were convicted last year and 160 are awaiting trials (for alleged terrorism offences). The police work is intended to be proactive.

Labour peer Lord Ahmed of Rotherham denounced extremists stating: "As a Muslim I am even supporting the death penalty for those people who prey on innocent minds and where we can prove people are preparing to use innocent, vulnerable people."

Despite Significant Progress: Iraq Not Ready

Iraq seeks to have American troops in Iraq confined to bases and private security guards would be subject to local law. In the status of forces agreement (SOFA) under discussion several points come to mind. The sovereignty of Iraq is an important consideration but the country is in no position to be play a card with this point about sovereignty. Iraq's sovereignty, at this time, is guaranteed by one factor: the U.S. military.

The 150,000 or so U.S. troops in Iraq who live on scores of bases across the country, from little 30-men outposts to sprawling camps often built around old Iraqi army barracks, arises from the fact that this was the only military manner to ensure Iraq's security. To dismantle this system, post-surge, is unrealistic since the country would quickly descend into the maelstrom that characterized the poor military arrangement that was previously in place. Unless Iraq is ready now to completely take over its security, then the U.S. military should remain as it is now.

The second main point is even more troublesome, whether private security companies working for U.S. forces will continue to enjoy immunity from Iraqi law. Herein lies the problem. What Iraqi law? The rule of law came as a result of 1) the U.S. military; and, 2) private security companies. If Iraq is ready to handle the responsibility of the rule of law then indeed private contractors should be subject to Iraqi-American law. With significant terrorist opposition, the U.S. military and private contractors would be operating with a severe handicap that the insurgents are not subject to.

At this point, and despite significant progress, Iraq can not handle its own security and the law has not penetrated deeply enough, not yet anyway.

Ali al-Dabbagh, an Iraqi government spokesman, stated (about the Americans): "They have to be there in the back and . . . in their camps. Whenever we ask them they will be ready to support and help.” So let me get this straight, `don't call us, we'll call you.' That is a policy that is fraught with failure.

The outrageous incidents involving Blackwater, the largest private security company in Iraq, are really regrettable but unless Iraq can secure the country and ensure the rule of law the private contractors should remain.

The U.S. has a status of forces document for more than 80 countries, including Japan, Turkey and Singapore, and these should provide the model with which the Iraqi accord can conform.

American Soldiers Embrace Islam in Afghanistan

In Afghanistan American troops are engaged in "Operation Embrace Islam." Soldiers from the 1st Battalion, 503rd Infantry Regiment are expanding the program started by its predecessors in the province, the 10th Mountain Division’s 2nd Battalion, 87th Infantry, to include refurbishing mosques in Paktika province. About 300 mosques have benefited directly through the program: new paint, solar-powered loudspeakers to announce prayer times, copies of the Quran, and new carpeting. The battalion hands out prayer rugs, turbans, shoes, teakettles and water jugs to local mullahs. These donations are expensive by Afghan standards, between $150 to $200, and the mosque refurbishing kits are even more expensive, sometimes costing several thousand dollars. There are about 35,000 villages and about the same number of mosques. The Americans have their work cut out for them to win hearts and minds by promoting religious objects in the province.

Note on The Naked Olympics

The boxers pictured here are engaged in the most lethal of Olympic sports. Greek athletes wrapped their fists in leather thongs and pummeled one anothers heads until one contestant surrendered. The head was the only fair target since hitting the body was against the rules.

Quite a romp through the ancient Olympic games is Tony Perrottet's The Naked Olympics. Although based on sound historical research he entertainingly describes the social and the more humorous aspects of the Olympics. For a brief but soundly researched and thoroughly entertaining volume you would do well to read this work. The work is timely now that the Beijing Summer Games are upon us.

Offensives Throughout Afghanistan

Graphic source: The Long War Journal

In some of the worst and violent anti-government activity to date, Afghan and Coalition forces launched separate offensives throughout most of the insurgency-plagued areas of Afghanistan: Badghis, southwestern Farah province and central Uruzgan province, southeastern Zabul province; Kapisa province, and in the provinces of Kandahar and Helmand.

June 2008 Order of Battle

Graphic source: The Long War Journal

Events have gone so well in Iraq after the surge I've only listed the significant weaknessess as noted by the best accounts of ground action as reported by The Long War Journal.

Significant weaknesses are:

• Logistics and intelligence are weak.

• The army will not start to aquire its first field artillery until 2009.

• Additional corps and support elements are being built and is needed for current force, but the force does need further expansion of line elements. The Iraqi Security forces are currently adding their fourth corps level joint command, Anbar Operational Command.

• Major increases in armored vehicles, especially tanks, are needed.

• The Iraqi Air Force is a decade from independence. It takes two years to train a pilot compared to only three months for an infantryman.

Military Occupation and a Positive Precedent by the Heroic Generation

The Iraq fiasco has been widely lamented although similar situations

have worked out more positively and provides a precedent for the nay-sayers to consider.

Lucius Clay states:

This government was established under Military Government and it was timely that our remaining task in Germany be transferred to civil authroity. An occupying army had taken the lead in restoring self-responsibility to the German people and in encouraging the formation of democratic government. It was something of which the Army could be proud and which might well set a valuable historical precdeent.

The U.S. military has been a successful occupation force after an invasion in the case of both Germany and Japan that Richard J. Barnet admirably describes.

So what did the heroic generation have that we don't have? Clay describes the difficulty of seizing, managing, and making productive a key industry. In Germany it was the energy resources and in Iraq its oil. He makes it crystal clear that no opposition would be tolerated and notes small examples of resistance that were crushed. The problems of post-war construction were as seemingly as insurmountable as an unilaterally-governed Iraq but Germany was perhaps an even more intractable situation. The additional complication that Clay resolved was multilateral governance in particular given the truculence of the French and of course the hostility of the Russians. Religion was given free reign and Clay was reluctant to interfere in this matters with the U.S. belief that government should be neutral in religious matters.

One main accomplishment may be noted Iraq with the emergence of Maliki and somewhat competent government. This is a recent positive goal that I thought nearly impossible just over a year ago. We are on the right track.

One other striking difference is true in contrasting Germany and Iraq. The incredible good will and personal involvement by ordinary Americans is almost completely absent today. There has been a dearth of activity by ordinary Americans in outreach and in humanitarian efforts and without this type of personal interest it is no wonder that Iraqis find it difficult to believe that Americans have strong values. Democracy does not flourish without involvement and Americans in many ways participate much less in their own democratic affairs much less take an interest in exporting democracy elsewhere. We do not have the leaders of the heroic generation nor do we have the same quality of Americans who would not consider themselves heroic but more simply just being who and what they are.

Anonymous Commentators Weigh In On Latest OLPC

What's an educator to do? On the one hand, we have the gushy optimism of Mike Elgin, technology evangelist, who tells us the OLPC's latest incarnation will transform the world. On the other hand, there are all those nasty commentators who immediately dissed the project. I quote them (anonymously):

Submitted June 6, 2008 - 08:09.

I think the OLPC 2.0 is what the UMPC's should be. I agree, it is the future of notebook computers and computing in general. Even if it costs $200, IMO - it will be worth it.
future?

Submitted June 6, 2008 - 08:32.

A few years back the floppy drive on a laptop the school owned failed. I contacted the maker and was told 750.00 for the floppy drive replacement. That was excessive so I purchased a recertified one from a firm in Tx. That floppy drive also failed in about 45 days. I called the firm in Tx and I was told that there was only a 30 day warranty on the 500.00 recertified drive. They decided not to replace the floppy and instead upgrade the memory. The memory upgrade cost close to 750.00. Then they passed the laptop off on another user who promptly called me and wanted the floppy drive replaced. I told them about the money already spent and they still wanted the floppy drive replaced. I found another floppy drive from another vendor in Ca. and that only was 450.00 but that floppy lasted longer then the recertified one and it had a year warranty.

Submitted June 6, 2008 - 08:44.

Give up the mouse and an actual keyboard? I wonder how long that will last...

Submitted June 6, 2008 - 08:47.

I suspect that as long as people continue to use tactile -- and therefore separate -- keyboards, they will continue to use some physical mouse equivalent distinct from the screen. A mouse near the keyboard rather than a foot away on the screen is much more ergonomically acceptable and faster to use. Therefore I do not expect the mouse to disappear before the keyboard.

But in a few decades I don't expect separate keyboards to be common at all. Rather, I think vocal or subvocal speech recognition or some other more direct technology will have replaced using the fingers to enter text one letter at a time.

Submitted June 6, 2008 - 10:23.

The OLPC is probably a footnote at this point in time. Why?

They decided to, effectively, abandon their revolutionary Sugar OS for--Microsoft. This has resulted in a loss of support from the FOSS community and necessarily changes a unique, hardware-light foray into new territory into an underpowered just-another-box.

It's clear that our entire model has to change to give us anything really new--face it, a programmer or user from 1950 would recognize today's character-by-character keyboard entry. A mouse wouldn't be any real shocker, either.

But the entire paradigm of Windows is going to be a real stretch to a kid in the third world--which was a major premise of Sugar.

One step forward, two steps back.

The comments indicate an immediate, visceral reaction on the part of people who have vocal, detailed, and emotional responses; and yet, the original inspiration and dream of the project is a sound humanitarian, and fascinating endeavor.

What is the reality?

The OLPC project is a wonderful dream and a worthwhile project that I've been interested in consistently over time. If the aims of the OLPC group could be realized it would be a fabulous accomplishment. The commentators have sound points to make though. The project never realized its cost limitations and a healthy part of their vision was lost with the decision to abandon open source technology.

While we debate whether the glass is half empty or half full the kids who could benefit from the technology are helped enormously. That is why I remain hopeful that at least some of the less grandiose but realistic plans of the OLPC project can be realized.

The different modes of the next-gen OLPC laptop.

Graphic source: One Laptop per Child

International Examples of Counter-Terrorism

The balance in the war on terrorism is vigilance tempered by a respect for civil rights. This is not the case worldwide. Foreign Affairs ran an interesting piece about the worst places to be a terrorist.

France is repressive but not for the reasons that the journal notes. It is true that France first dealt with international terrorism with the Algergian situation in the 1950s. The real reason France has effective prosecutions though is that the Napoleonic tradition is more prosecutorial as opposed to English common law in the first place. Not surprisingly, in the war on terror France is a bad place to be a terrorist.

Jordan has enjoyed one of the quietest experiences, and lack of terrorist activities despite its easy access to some of the world's worst places for terrorism, but at what cost? The November 2005 al Qaeda hotel bombings in Amman provoked King Abdullah II so much that he has stopped the infiltration of terrorists from neighboring Iraq and Syria. Jordan’s intelligence service, the General Intelligence Department, is close to Sunni tribes in Iraq’s Anbar province. It also has a first-rate specidal forces unit and special operations training center.

Egypt has also been one of the most adamant about shutting down terrorists but for the U.S. our relationship with Egypt has done little other than providing terrorists with another reason to despise the U.S. The Muslim Brotherhood began in Egypt, and they have directly confronted the Egyptian Islamic Jihad so the country is no stranger to its dangers. Hosni Mubarak ruthlessly represses terrorist activity routinely tortures prisoners.

Singapore, 15% Muslim, has effectively combatted regional terrorist groups such as the al Qaeda-linked Jemaah Islamiyah. Since 2003 though the government aimed to rehabilitate arrested militants with volunteer clerics who counsel detainees and rebut extremist arguments. This is a potential area for the U.S., who is reportedly studying the idea, to explore more fully.

Russia has brooked no opposition since Vladimir Putin rose to the fore and counterinsurgency and counterterrorism have been his forte. Russia has ruthless attacking terrorists in Chechnya. Oddly, they promoted former rebel Ramzan Kadyrov to the presidency of the now largely peaceful region. The Russian tactics include the sacrifice of civilians if need be when attacking terrorists which would not work for Americans. Next to the largely pacified Chechnya, the neighboring regions of Dagestan and North Ossetia remain hotbeds for militants.

The U.S. can learn little from other countries and has to prosecute terrorists with fervor while protecting American liberties. This is no easy task and the road is long and difficult. None of the areas that are troublesome for terrorists provide a legal framework for the United States to build on. We are more concerned with the liberty of citizens, the safety of hostages, and even when dealing with international terrorists, we are more adamant to rule with the law than the governments of these nations are. Singapore provides the only possibility of a place where the U.S. could learn a thing or two.

More Iraqi Refugees Enter U.S.

The U.S. accepted 1,141 Iraqi refugees in May which is the most the U.S. has taken in one month. 4,742 Iraqi refugees have entered the U.S. since the fiscal year began in October. May's number was more than half of the total for all of 2007: 1,608. But the U.S. needs to accept about 7,200 more Iraqi refugees over the next four months to meet the State Department's goal of 12,000 that I've noted before.

Extreme IT On the Frontlines: Literally

IT support in Afghanistan (clockwise from upper left): Specialist Wood tests a satellite communications trailer before deployment to a combat outpost in Afghanistan; PFC Cuellar configures a server in a remote forward operating base; two soldiers install a phone box; Chief Warrant Officer 3 Hooser tests one of the small satellite terminals used throughout Afghanistan.

Graphic source: Computerworld

Computerworld ran an article entitled, "Extreme IT: Battling dust, heat and bombs in Afghanistan and Iraq." The picture provides a sample of how the troops are coping with the extreme IT conditions on the ground. This is really inspirational about how IT professionals, as soldiers, are coping with conditions in Afghanistan and Iraq.

Ohio Man Guilty in Bomb Plot

Christopher Paul, 43, of Columbus, Ohio, is accused of plotting to bomb European tourist resorts and overseas U.S. military facilities and pled guilty to a single terrorism charge as part of a deal that could result in a 20-year prison sentence, according to federal court documents. Graphic source: AP Photo/Franklin County Sheriff's Office

Paul joined al-Qaida in the early 1990s and taught fellow Muslims to bomb U.S. and European targets. Paul is a U.S. citizen born and raised in Ohio. He was indicted in April 2007 and had been set to go to trial early next year. In 1999 Paul traveled to German to train members of an alleged terrorist cell knowing the group planned to make bombs and car bombs to use against Americans vacationing at overseas tourist resorts. The German group also planned to use bombs against Americans in the United States and against overseas U.S. facilities. The Justice Department had also accused Paul and two other men of discussing terrorist attacks during an August 2002 meeting at a coffee shop in suburban Columbus. The other two pled guilty and were convicted: Nuradin Abdi in connection with an alleged plot to blow up an Ohio shopping mall, and Iyman Faris in connection with a plot to destroy the Brooklyn Bridge.

Paul converted to Islam in the late 1980s and joined al-Qaida after traveling to Afghanistan in the early 1990s. He fought in Afghanistan against the pro-Soviet Marxist government. He was a recruiter and taught martial arts at a local mosque.

Note on Wissner-Gross

Easy read but a helpful book especially when coupled with Wissner-Gross' other work, What High Schools Don't Tell You.

Note on Mapping History Battles and Campaigns by Malcolm Swanston

This is quite servicable as a discount book. The illustrations are well made and mostly instructive. The text is spare but adequate. There are minor battles, e.g., Ap Bac in Vietnam, and when coupled with major battles such as Waterloo the presentation appears flawed and out of proportion. The major appeal of a book such as this is its oversized maps and material which make it easier to see and enjoy in its own right. The text and contents should not be accepted in and of itself without supplement by more extensive works.

History of MS

Richard M. Swiderski reports in his Multiple Sclerosis Through History and Human Life that the disease was unknown in ancient or medieval times. He does though provide evidence that certain historical figures, saints and nobility, did appear to suffer from what we can recognize, in hindsight, as multiple sclerosis (MS). It is not until the groundbreaking period in 1868 when Jean-Martin Charcot, a professor of neurology at the University of Paris, who has been called "the father of neurology," really observed first hand the symptoms of MS; nonetheless, he had no sure process of diagnosis much less a cure. More recently the history of MS has been described in later works such as Multiple Sclerosis The History of a Disease by T. Jock Murray, MD. and A History of Multiple Sclerosis, by Colin L. Talley.

Note on Napoleon As Military Commander

This work does not claim to be definitive but is more simply a brief review of Napoleon as military commander. To that end, it is certainly serviceable. The illustrations and maps could have been more deftly placed and integrated better with the text but the work is clear enough. In addition, although it does not claim to be about Napleon the man, the quotations from private letters and notes about his relationship with his family and early private life is instructive.

Insurgents Had Enough: Tired of Fighting

An estimated 1,000 former insurgents turned themselves in during Balad, Iraq negotiations. The insurgents were simply tired of fighting and with a written pledge to the Iraqi constitution they promise not to pick up arms again. Most did not receive any punishment, only 76 faced trial dates.

Navy Lags Behind, Stuck in the Cold War Expense

The MQ-4 Predator controlled by the 46th Expeditionary Reconnaissance Squadron stands on the tarmac at Balad Air Base, 50 miles north of Baghdad, Iraq. Graphic source: AP Photo/Maya Alleruzzo, File

The Navy is lagging behind the Air Force and has limited the future of drones in that service branch just for spying but not fighting. They Navy favors the "Top Gun" fighter pilots of the past. The Navy remains tied to its anachronistic view of modern warfare with plans for the F-35 fighter jet. The Air Force, by contast, has used armed drones for years and is more in line with the Pentagon trend to encourage drones as a way to reduce costs and consolidate personnel.

The Navy lags behind the Air Force, which first used an armed version of the Predator drone in combat in Afghanistan in 2001. The Air Force's latest version, the Reaper, can carry up to 14 Hellfire air-to-ground missiles or alternately, four Hellfires and two 500-pound bombs over Iraq, Afghanistan or other war zones.

The mobile air attack is required in complex air missions but these situations are less likely with the demise of the Soviet Union or even perhaps in the case of hard-charging Chinese threat.

Airstrikes will presumably be done by the next-generation F-35, which the Navy is expected to receive in 2015.

Experts have noted that a drone carrying the same weapons payload as the F-35 would have two and a half times the range of a manned aircraft without refueling, and could remain over the battlefield 5 to 10 times as long.

Those factors make it the weapon of choice, timing, and budget.

Mars Hacked Twice

Not once but twice the Phoenix Mars Mission site got hacked. First, a Ukrainian web site defacer posted a message at the site’s blog, and hours later,

the Turkish “sql loverz crew 2008″ redirected the official mission’s site, as well as the Lunar and Planetary Laboratory site to a third-part location serving the defaced page.

These crews employ publicly obtainable remote SQL injection scanners that each site could have downloaded and performed a self-audit.

Hey Bo Diddley! "bonk-de-bonk-bonk, de-bonk-bonk..."

Graphic source: Mark Summers

Bo Diddley (December 30, 1928 – June 2, 2008), born Ellas Otha Bates], aka "The Originator," influenced American rock 'n' roll as a singer, songwriter, and guitarist. He was perhaps best known for his distinctive rectangular guitar and as the creator of the "Bo Diddley beat."

He changed his "name in search of fame, to find the Midas touch (Copyright: "Ballad of Mott" Ian Hunter, Overend Watts, Mick Ralphs, Dale "Buffin" Griffin and Verden Allen) and adopted a stage name which is most likely a Southern African-American slang phrase meaning "nothing at all," as in "he ain't bo diddley." He possibly first used the nickname as a teenage Golden Gloves boxer. Finally, the nickname is also associated with the diddley bow, a two-stringed instrument that was used in the South by black musicians working in the fields.

In late 1954 he recorded "I'm A Man" and the A-side "Bo Diddley" at Chess Studios and as released in March 1955 "Bo Diddley" became a #1 R&B hit.

Diddley is best known for the distinctive "Bo Diddley beat," a rumba-like stylistic device similar to "hambone," a style used by street performers who play out the beat by slapping and patting their arms, legs, chest, and cheeks while chanting rhymes.

Some of his best-known songs, "Hey Bo Diddley" and "Who Do You Love?" often have no chord changes and the song centers on the rhythm. He influenced later guitarists with his early experiments with special effects and other innovations in tone and attack. Bo Diddley's trademark instrument is the rectangular-bodied Gretsch, nicknamed "The Twang Machine," a guitar that he developed himself around 1958.

His lyrics often freely adapted folk music themes. The song "Bo Diddley" was based on the lullaby "Hush Little Baby." Likewise, "Hey Bo Diddley" is based on the folk song "Old MacDonald." The boasting and booming of "Who Do You Love" is a wordplay on hoodoo.

On November 20, 1955, he appeared on The Ed Sullivan Show but only infuriated the host when instead of singing the arranged song, Tennessee Ernie Ford's hit "Sixteen Tons," he instead substituted his own "Bo Diddley." He was banned from further appearances.

His other hits in the late 1950s and the 1960s, included "Pretty Thing" (1956), "Say Man" (1959) and "You Can't Judge a Book By the Cover" (1962). One of his lesser known hits is the controversial "Love Is Strange" for Mickey and Sylvia which was written under a pseudonym.

Diddley's distinctive beat influenced many later rock artists, notably Elvis Presley ("His Latest Flame"); Bruce Springsteen ("She's The One"); U2 ("Desire"); The Smiths ("How Soon Is Now?"); Roxette ("Harleys And Indians (Riders In The Sky)"). Dee Clark - A former member of the Hambone Kids ("Hey Little Girl"); Johnny Otis ("Willie and the Hand Jive"); George Michael ("Faith"); Normaal ("Kearl van stoahl"); The Strangeloves ("I Want Candy"); Guns N' Roses ("Mr. Brownstone"); David Bowie ("Panic in Detroit"); The Pretenders ("Cuban Slide"); The Police ("Deathwish"); Wayne Fontana & The Mindbenders ("The Game of Love"); The Supremes ("When the Lovelight Starts Shining Through His Eyes"); Jefferson Airplane ("She Has Funny Cars"); The White Stripes ("Screwdriver"); The Byrds ("Don't Doubt Yourself, Babe"); Tiny Letters ("Song For Jerome Green") and The Stooges ("1969"). The early Rolling Stones sound was strongly associated with their versions of "Not Fade Away" and "I Need You Baby (Mona)."

Diddley died today at 79.

Graphic source: Rolling Stone

Iraq Army Interdicting Iranian Operatives

Good news is that the Iraqi Army is interdicting Iranian operations in the South and the U.S. can begin to stand down. The bad news is that the U.S. has been clever enought to train and run and not attack Iran. However, once the re-armed Iraq is ready to deploy, another war with Iran is more likely. Will the U.S. be largely withdrawn by the next war or will the U.S. be drawn back into the conflict?

AQ Accuses Saudis of Funding Insurgents

Ali Ahmed Ali Hamad, Graphic source: The Philadelphia Inquirer

Ali Ahmed Ali Hamad, a former al-Qaeda commander, accused a government charity, the Saudi High Commission for Relief of Bosnia and Herzegovina, of funding his insurgent unit in Bosnia. Saudi Arabia has flatly denied these accusations for years. Hamad testified in a United Nations war-crimes trial. There is some question as to the veracity of Hamad as a convicted terrorist. He is serving a 10-year sentence in a Bosnian jail for his role in a 1997 Mostar bombing. He testified that the Saudi Commission had poured tens of millions of dollars into terrorist units led by al-Qaeda operatives who fought with Osama bin Laden in Afghanistan. The money was waylayed from humanitarian relief to buy weapons and military supplies. The charities also provided false identification, employment papers, diplomatic plates and vehicles that permitted Islamist fighters to enter the country and pass easily through military checkpoints. Several charity offices were led by former mujaheddin or al-Qaeda members. Like other al-Qaeda fighters, Hamad stated he traveled through the war zone in commission vehicles with diplomatic plates.

وش يفرض عقوبات على حزب العمال الكردستاني

Graphic source: AFP

وش يفرض عقوبات على حزب العمال الكردستاني

السبت 31 أيار 2008 05:38 GMT

فرض الرئيس الامريكي جورج بوش عقوبات على حزب العمال الكردستاني وجماعة ايطالية تروج للجرائم المنظمة، في محاولة لحرمانهما من الوصول الى النظام المالي الامريكي. وباستخدامه قانون مكافحة تهريب المخدرات، يكون بوش وبحسب المتحدثة باسم البيت الأبيض دانا بيرينو قد أخضع حزب العمال لاجراء من شأنه تقويض عملياته ووضع حد للمعاناة التي يسببها الاتجار في المخدرات للامريكيين وشعوب العالم، علاوة على منع مهربي المخدرات من دعم الارهابيين.

Bush imposes sanctions on PKK

Saturday, May 31, 2008 09:16 GMT

US President George W. Bush imposed sanctions on Kurdistan Workers Party and an Italian organized crime group in order to prevent the group access to the U.S. financial system. Using a U.S. anti-drug trafficking law, Bush has put the PKK and the Italian group subject to the sanctions, which prevent U.S. companies and individuals from engaging in trade and transactions with them. “This action underscores the president's determination to do everything possible to pursue drug traffickers, undermine their operations and end the suffering that trade in illicit drugs inflicts on Americans and other people around the world, as well as prevent drug traffickers from supporting terrorists,” White House spokeswoman Dana Perino said in a statement.

Cf. http://www.alsumaria.tv/en/Iraq-News/1-18381-Bush-imposes-sanctions-on-PKK.html

The sanctions were levied against the Ndrangheta mafia from the Calabria region of Italy, which has overtaken Sicily's Cosa Nostra as the richest and most violent of the Italian mafia, and a Mexican drug-lord and his cartel. Three individuals from Afghanistan, Venezuela and Turkey were also sanctioned. The PKK is branded a terrorist organisation by Turkey, the US and EU; the group is largely held to use drug trafficking to finance terror. More than 30,000 people have been killed since the PKK began in 1984. In Mexico, nearly 1,400 people have died this year across the country, as drug cartels fight among themselves and government forces. Previously there were 68 individuals and entities subject to sanctions under the Foreign Narcotics Kingpin Designation Act, which became law in December 1999.

Idealist.org Charges Nothing to Post a Job: Limited Time Offer

Idealist.org usually charges a nominal fee, $60, to post a job on the nonprofit job site. But starting today, and through the end of June, all job postings on
Idealist are free for any nonprofit organization. At http://www.youtube.com/watch?v=n-BQYIPILUU Idealist even created a video to advertise why they think this is the best place to post a nonprofit job.

Youngest Islamic Insurgents

The new generation of militants in the Islamic State of Iraq are the youngest possible followers. The failed insurgency is beginning the look more and more like the failed 4th Crusade, the children's crusade.

Graphic source: Gustave Doré (1832-1883), Public domain.

The Children's Crusade is the name given to a variety of fictional and factual events in 1212 that combine some or all of these elements: visions by a French and/or German boy, an intention to peacefully convert Muslims to Christianity, bands of children marching to Italy, and children being sold into slavery. Several conflicting accounts exist, and the facts of the situation continue to be a subject of discussion among scholars.

Cf. Wikipedia.

Golden Dome a Bright Spot in Samarra

Graphic Source: Times Online

The golden edifice of the al-Askari shrine, built about 1,000 years ago, contains the tombs of the 10th and 11th imams--Ali al-Hadi and his son Hasan al-Askari. Muhammad al-Mahdi, the last of the 12 Shia imams, is thought to have disappeared into a tunnel under the shrine in 878. Many Shias believe that he will return to bring justice to the world. It was the destruction of the al-Askari shrine, by the foreign invaders of al-Qaeda in the Sunni city of Samarra in February 2006, which was a pivotal step that almost pushed Iraq into a civil war. The sectarian slaughter that ensued was not by any means pleasant but the reconstruction of the Golden Dome is indicative that places in Iraq may be returning to normalcy, normal for Iraq that is.

Samarra may make a comeback as an important city for Shia tourists and pilgrims if the Dome is repaired.

Sunni tribesmen many of whom were part of the insurgency, revolted against al-Qaeda last year, and they have now become part of the security details, for Iraq.

The Sons of Iraq currently stand at a 1,600 members in Samarra. There is reportedly an 80% improvement in security services by merging the Sons of Iraq into the regular police force.

Essential services are being restored to the area in which the Dome is expected to take 18 months to complete the structural work but replacing the gold-painted copper plates that cover the outer dome and the minarets will take much longer.

It may be a long road presently but the path to getting to the reconstruction of the Dome seems like the more difficult way. They way to normalcy in Iraq is clearer and more focused than in times past. As late as last August, it did not seem possible that the Iraqi security forces could turn the situation around.

Monthly Death Toll Lowest Since 2004

The monthly death toll for American troops hit its lowest mark since 2004. As of Saturday, the death toll for American troops stood at 21, the lowest since February 2004, when 20 troops were killed. In the toll was a non-combat related death. The numbers appeared to support testimony from the top U.S. military commander in Iraq, Gen. David Petraeus, who said that recent operations "contributed significantly to the reduction in violence." Rear Adm. Patrick Driscoll, spokesman for Multi-National Forces-Iraq, stated: "In the past week, security incidents decreased to levels we have not seen since March of 2004. These figures reflect a decrease in attacks of some 70 percent since the surge operations began in June of 2007."

Aussies Combat Out: Leave Assets Behind

Australian soldiers on duty during a joint street patrol with Iraqi security forces in Sammawa, south of Baghdad June 22, 2006. Graphic source: REUTERS/Mohammed Jalil/Pool

The 500 or Australian combat troops committed to Iraq left the country, fulfilling an election promise by Australian Prime Minister Kevin Rudd to bring the soldiers home this year. The Australian troops themselves were frustrated with their lack of combat action and limited involvement.

Before leaving however, the Australians handed over security responsibilities in Dhi Qar province to the Iraqis, which as their main role of the Australians, to train and support Iraqi forces.

As a sign of their continuing efforts, Australia is leaving behind two maritime surveillance aircraft and a warship to patrol the oil platforms; in addition, they are also leaving a small force of security and headquarters liaison troops.

Australian civilians training the police and advising the Iraqi government would also stay behind.

Despite the Australian government's support against the insurgents, around 80% of the Australian people are against continued deployment.