Saturday, December 30, 2006


This time of the year, we tend to become aware of things accomplished and not-accomplished, and congratulate ourselves (and maybe even: give thanks) or feel regrets accordingly.

One accomplishment: Spencer Hsu reports in the “Washington Post” ( that, as the article is titled in bold print “Domestic-Partner Violence in US Fell Sharply”. Well, there at least is something to show for the significant deformations wrought in the name of at least one of the Revolutions. Any lessening of violence in this perennial violent world among our perennially violent species is a good thing.

But Hsu has no sooner expressed this happy fact in the first half of the first sentence when he quickly balances – I guess you’d have to call it – the good news with the ominous prognostication (not so much a fact) that the violence “is showing signs of a rebound”.

And he follows that up with the immediate comment that “Men benefited more from the decline than women” – which is indeed kind of disconcerting, since this entire Emergency and the enabling legislation passed to give it teeth, certainly gave the impression of being done for “women” (and when I use the term, I am not disparaging more than half of Us, I am simply using the term used by certain of the Advocacies and is now in wide use). Have we pulled out critical hull planking, broken down carrying walls, diluted the integrity of watertight doors … for nothing?

It’s more of a business thing, actually, it seems. Advocacy in its advanced stages is a business, and now that bureaucracies have grown up around it as well, it’s like coral forming a reef on the hulk of a newly sunken ship. What business wants to announce that its services and ‘product’ are no longer needed? And, as well, what individual operative wants to the first one of the ‘good guys’ to be haled before the PC court where pre-adolescent ‘logic’ insures utter ruin? ‘Excuuuuse me, did you just say that there’s no more violence against (fill in the blank)??!!’ – that type of comment delivered to any Advokist or apparatchik is the equivalent of one of the masses suddenly pointing to you as you walk out of your office and shout ‘Capitalist roader!” during Mao’s Cultural Revolution, of unhappy memory. And who wants to be the first Party member actually haled before the court of the faithful as a revisionist, running dog lackey of the oppressors? Cultural Revolutions, once stitched together, infused with the breath of life (however ersatz) and sent careening through the streets, are not always precise in their assessments – such simplisticity and ‘clarity’ is the source of their great strength, as it was for Kong. Who can argue with Kong? Deliberate with it? Persuade it? Nope, democratic process isn’t of much use when you’ve got one of these loose downtown. And when you’ve got a herd of them … well, then you have to stow democratic process and its mindset and heartset in the basement for the duration. And if the emergency bids fair to last into the uncharted future, then you’ve got an even bigger problem.

So as one government apparatchik said on the record: “It’s declined since 1993, but there’s still too much of it.” Absolutely. You could say that there has always been too much of it in this cracked and bleeding world. Too much pain, too much suffering. And as has been noted previously on this site, it was true at the time of the Founders, who still thought that of all the sources of pain and suffering in their wide grasp of human history (could any Ivy League senior today muster the knowledge of the world mastered by somebody educated in the late 18th century?) it was ‘governments’ that were the greatest predators and the animal most ‘ferae naturae’.

But this was inconvenient to the Advocacies, who were actually planning to get in bed with the government, so to speak. Or perhaps – as some of them seem now to be trying to imply – they were like the good and ‘realistic’Germans of late 1932 who calculated that they could ‘hire’ Hitler, domesticate the beast to their own constructive purposes, and thus restore the homeland of the Fatherland. Ja. That worked well. After 1945 it was a gameplan begging to be tried by some perhaps more competent team. Ah, the playing fields on which so many far more important matters are lost.

But Hsu then goes on – honestly – to note that this trend since 1993 actually “continued a decline in domestic violence recorded since 1976”. Ummmm … what? Do tell, please do. But less forthrightly – although perhaps more prudently, our modern American reality being what it is – he doesn’t follow that path too far. He does note that there are many possible explanations, which would only be news to a 5 year-old. He includes there-among, “the awareness raised by the 1994 Violence Against Women Act”. Well, but that Act was passed in 1994 and things had by that point been getting better since 1976. And “awareness” is far too modest; this wasn’t just a nation-wide consciousness-raising session, just a hootenanny with a feminist tinge. Nor was it a Norman Rockwell town-meeting held in every village and town. Serious erosions were made in due process and in the media’s concept of objectivity, and honesty, and – inescapably – the media’s ability to identify, let alone confront or even comment clearly on, Reality. And in The People’s abilities to consider, deliberate, and decide. This was not such a good thing.

And that year of 1994 was also the year of another revolution, the Republican one whereby ‘government’ would be shrunk and gotten off the people’s back. That didn’t work. It’s hard to see how it could, when you consider that one of the first Acts of that Year was to invite – indeed demand – the government’s presence at the hearth of every home and every bed in the nation.

Presently, it is being ‘mentioned’ by those in the know that the Republican Revolution, too, was a Great and Good idea betrayed by … well, something or somebody. “The corrupting influences of Washington” have been mentioned, but that’s an abstraction in a dishonest sense: “influences” don’t take actions, folks do. But what folks want to take responsibility for what happened? As Allied troops found out to their amazement in the Fall of 1943, Mussolini apparently ran the entire Fascist regime, down to the village level, by himself, with nobody else helping him with the heavy-lifting – getting the propaganda out, making the arrests, running the prisons and the secret police. A remarkable man, no? They say he only needed a couple of hours of sleep a night – some people just have a gift, it seems.

Saddam is dead. Chris Floyd discusses it in the Post “Rope Trick” on his site, Empire Burlesque. Nobody, he notes, seems to recall that while Saddam was indeed a son-of-a-bee, he was OUR son-of-a-bee. At least he was in the days of Reagan, Bush Pere, and some guy named Rumsfeld. Memory – we’re not talking the Civil War here, or even World War 2. We’re talking the early 1980s. Can it be that while there is a certain respect accorded ‘repressed memory’ – which in practice is not so easily distinguished from mild hallucination – yet we have lost the capacity for the memory of public events widely recorded that actually happened? What is happening to us? What is happening to Us? What has happened to Us? Time to have one of those Ray Milland moments in the mirror and wonder where the weekend went. Because a hell of a lot of people are dead and are still dying and the bullets seem, it is said, to be ours. Let’s hope there are no police in this town. Let’s hope that there are no Police. Or maybe we are – as some preachers assure us – Deputies ourselves … that would help. If we could remember. If we could know.

But then again, as one Iraqi gentleman said, quoted by Sudarsan Raghavan in the “Washington Post”, Saddam “is not a human being … he does not deserve to be alive”. Now if you’re going to run a democracy, you just can’t let yourself go and think like this. Secondly, there is Due Process to resolve thorny questions like this, to the extent that our poor power can add or detract at all. And if you override Due Process, then the laws are flattened and nobody will be safe (unless they arm themselves and attach themselves to tribal bands – which can be called neither ‘enlightened’ nor ‘progress’). Firstly, it is remarkably Proud, in the worst sense of the term. No human being has the right to make that decision. That is a decision for God to make – or was, until ‘God’ was declared a no-longer operative Theory. At which point, the life-space of the species thus having been flattened like its laws, then people are the only source of Justice (and we have a deep-down tendency to get notoriously impatient).

And people being kind of ‘separate’, then a more decisive decidering is required, like – oh sayyyyyyyyy – a government. A ‘gummint’. And so, like the Egyptians and the Romans, the gummint becomes the Deciderer of who is a human being and who ain’t. And who God likes (whom, actually) and whom He doesn’t. There is great historical precedent for it. But it is also sort of … pagan. Because in an enlightened society where there is no God – for any practical purposes – then the gummint gets to step out onto the stage (after some time in Make-Up, where golden-aura pancake, a wig, and the required robes are applied). Of course, in a more modest world, the gummint might simply claim to be deputized by God. And maybe that’s what the world is heading toward. Hopefully, America will give good example to the nations still struggling – as the I-Ching would put it – with their ‘inferior selves’, seeking to cling to their ‘superior selves’. Which is never bad advice and always gives you something worthwhile to do with your time.

And in “The Guardian UK” Timothy Garton Ash ( talks bout Reality striking back. It looks like we are going to be confronted with another hot-griddle conversation, wherein the flatness of the ‘space’ allowed for the world condemns us to simply scutter back and forth on the flat, increasingly hot, surface of the griddle that the initial assumption about the ‘space’ has now reduced the conversation, and us, and life to.

Realism or Idealism? Which will it be? Well it’s an impossible question to answer, and an impossible conversation to have, until you first clarify what you mean by “reality”. Do we accept that something Beyond - maybe Plato’s Ideals, maybe some Higher Power, maybe God – is real? If so then, not-believing in such a Vertical and Beyond dimension would be unrealistic; and to conduct the affairs of this world and of our lives without efficacious reference to that Vertical-Beyond would be unrealistic and, you might imagine, doomed to failure (depending on what you define as ‘success’, but one strategic problem at a time when we’re just starting out).

And if we so believe in such a Vertical-Beyond, and that such a dimension is actually a Consciousness that supports – say – the top-shelf Capital Letter Words like Justice, Charity, and such, then that takes a lot of pressure off the potboiler urge to make everything work out right-here and right-now. So we don’t have to go off half-cocked and cocky and start messing the world up, even if we’re sure we’re doing the Right thing.

Of course, we might believe that there is a Vertical-Beyond, but that instead of being a Higher Beyond, it is a Lower Beyond, and maybe conscious, so that It supports all the Capital Letter Words that are not so good – like Violence, Selfishness, Hate, and so on. If we believe that, then Peace and Charity and Justice become unrealistic.

And if there’s nothing at all, just this dimension and whatever and whoever can muster the strength to control it, then … Peace and Charity and Justice become unrealistic.

So to talk of Realism you first have to talk about what’s ‘real’. And depending on how you answer that, well – that’s a key first step, answering that. And of course you not only need an answer, but you need an accurate answer – one that actually reflects what’s true about the number of dimensions in our ‘life space’, in ‘life’. If your answer is that there is nothing Higher, at least for any practical purposes, but there actually is a Higher, and if also He takes an abiding interest, and maybe keeps tabs Bigtime … well, you can see how things might ultimately turn out.

Governments are notorious for either leaning toward the griddle answer, in which case they want to be the biggest sum-bees on the griddle, or else they declare themselves Deputized by the Higher Power, in which case they still want to be the biggest sum-bees on the griddle, but now it’s because God Wills It (or words to that effect). Deus vult! Dieu lo volt! Gott Mit uns! That sort of thing.

We’ll be hearing a lot more about ‘realism’ in the coming year, Mr. Ash predicts, and he’s most likely right. We’d better have a few thoughts of our own on the subject before we go to CNN, Fox, Mr. Bush, Mr. Kissinger, or any of that ilk to get a quick tutorial. Or our marching orders. We might go to the Catholic Archbishop for the Armed Forces, but he seems to think everything’s going OK-enough over there. And that doesn’t seem too realistic at all.

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Friday, December 29, 2006


A piece of the Canadian Arctic’s ice shelf has fallen off. It’s been there since the First Dynasty or even longer. But in the middle of last month it just sorta sighed and broke off and floated out to sea. There’s only about 10% of the ice shelf left that was there in 1910 when Admiral Somebody explored it. They say that the day Hitler declared one of his invasions (Poland, the Low Countries, or the invasion of Russia) much of the German citizenry was taken up with a major [!] soccer match. Perhaps Boss Bush will start the festivities in Eyeran during the Superbowl. The Alpha stream is getting thicker. We are getting a chance to relive Pearl Harbor and be the Good War, no doubt about it. The question is: have we come back now as the Japanese? Ah the hot ironies. We knew nothing; we were only following orders, and – that hugely incisive line from Billy Wilder: “Eet’s troo eye vass in ze SS, bahhhht eye vass only a paaaastry chef!”. Ja. Sure. America stands some chance of being in the position of those worthy Prohibition-era burghers who, caught in a speak-easy, are going for a ride downtown just for being there.

Ralph Atkins, reporting for “The Financial Times” from Frankfurt reports ( that the euro is surpassing the dollar for numbers in circulation. No, this does not mean the euro is the world’s new primary currency of choice. But folks around the world are getting the sense that there is ‘other money’ besides the Yankee dollah. I wonder how many Americans think that one of these days they’ve got to take that trip to the South Pacific and be like Rosano Brazzi or go tooling around the French and Italian Rivieras’ coast roads like … all those other Americans who worked for the big Hollywood studios. Alas, James Bond can’t even have a cigar, and one wonders if the latest Aston even has a lighter.

The educator, Jack Blatherwick, Ph.D., notes ( that teaching children to memorize rote answers to tests in order to pass is basically setting them up to be sitting ducks for a government that will stamp out even the possibility of criticism and dissent. Absolutely. And “teaching answers to standardized tests should not be called education”. Also absolutely. “Standardized tests” permit no dissent “and might be the perfect preparation for a naïve acceptance of fascism.” It’s too true. And the hidden middle there is that the Revolutions of the Identities, under whose stern, impatient auspices Great and Good Things were rammed through the walls of American society, were themselves heading down a less-trodden but still usable path to fascism.

But when he says that children need to be taught “problem-solving”, I’d want to add that they will first need a basis of comparison by which they can – however skeptically and constructively – size up the present in order to devise efficacious repairs. So they will need a database – oy – of knowledge about Western Civ and maybe a tad of philosophy (the part about capital-letter words, at least) and then a current events course, and certainly some geography (it used to be called that, anyway). Of course, all this went by the board decades ago, not least because ‘males’ (dead or alive, and white – pink, actually) were using it to ‘oppress’ everybody else. We’d better dust off that stuff and get it up to the front chop-chop. Self-esteem may help Harry Potter put up a bubble against the Dementors, but out in the theater parking-lot, there is a sterner challenge that may not wait until we’ve finished our popcorn and flossed. Give’em hell, Harry – but we need to do some hands on growing-up too.

“Will our generation be remembered as the most self-centered in history?” Well, first I’d distinguish among generations: the just-arriving-at-consciousness through the getting-ready-to-Go-Beyond is a pretty broad spectrum. And while I don’t particularly cotton to the idea of looking to children or youth or Youth or ‘the young’ for efficacious advice (except in how to program an MP-3) let alone wisdom, I do very much figure that the older one gets, and making allowances for neuro-physical deterioration, it is the job of the older and the old-ing and the old to b) pass on their wisdom and a) keep the circus together so that the young will have a Big Top when it’s their time to get up on the high-wire. This is exactly what is not happening. Not enough of us have been doing our homework all along: climbing up the Ladder of Maturity (or Perfection, or Evolvement, or what have you) so that we sail along on the wave of Time rather than scudding and wallowing half-broadside to it.

American society has a long long way to go before it can figure that by beating up on molester priests it’s done its job and can turn in for the night. Few among us are ready and able to demonstrate that growing-up actually bears demonstrable fruit (and 70-year-olds fathering babies do not impress, nor fit the bill here). No, American society isn’t really set up for oldsters, but then it isn’t looking for wisdom either. For two centuries, there was enough ‘progress’ to be made on the material plane that matters of spirituality could be left to pleasant loons like Emerson and Throreau or Harvard professors like William James or the preacher impresarios going back beyond Billy Sunday to the revival tent.

Progress (so-called) on the material plane may be in short supply afore long. We’re best advised to have a Plan B – we’re seeing what happens when there isn’t one. Plan B would enable us to continue meaningful and efficacious operations on a different plane: we might, say, cultivate an appreciation for and a competence in what had long been called ‘wisdom’, and the idea of the genteel but down-at-the-heels cultured person, constructively engaged in contributing to society, might be just the ticket when the gas or the cash for the big luxury SUV or the umpty-cylinder roadster goes away. You never can tell. Wise virgins, and all that.

This will probably take some air out of the corrosive illusion that to exert oneself so as to be seen as having-been-done-wrong-unto is not really a good day’s work, and certainly won’t ground either a career or a meaningful life. Nor contribute to the well-being of an increasingly straitened society. Such was not the spirit that built the West, as they used to say in the long-ago that is now coming back. Let’s face it: we’ll need to become a bit more like pioneers if we’re going to keep our society together. I do not say this as someone who longs for a return to macho idiocies, but I do say it as one who hopes that the now-spent and stultifying detritus of the old Revolutions having been transcended, the Republic can be freed up to face the stern future that is heading right for It. Adulthood, not simply ‘Manhood’, will be much required. There are consequences to be faced for the binges of the Revolutions and of the Bushes. We were there, even if we were only pastry chefs or had gone to the stadium. And We are The People. Not Capra’s mushy sentimental Maw-‘n-her-boys people, nor Whitman’s kinda manic and histrionic people, but Lincoln’s People. Movies with Fonda (Henry) and Stewart (the postwar incarnation) might be the very thing – go ye to the dealers and buy some. And pay close attention.

But the doctor’s conceit – however well-intentioned and respectful of our self-esteem – to the effect that we are a “peace-loving” populace has to be stopped right in its tracks. This country has made itself through armed violence, and while I don’t condone violence, I insist that we have to accept what we’ve done before we can ever learn to do things better. (Bishop Limbaugh might inveigh that an insistence on Peace and Truth is a recipe for American defeat. But the man’s not altogether well – if news reports are to be believed – and, charitably, maybe it’s something else that’s doing the talking.). We have sown a lot of wind in our time, and there will be some reaping to be faced. If we don’t accept what we as a nation have done, and been doing, then it will be that much easier for us to slide into the delusion that the world and life are unfair. Actually, such reaping might be taken as proof of the existence of God, and such an experience can never be fundamentally bad. Now we’ll get to do Redemption the Kathlik way, through real suffering maturely metabolized, and not just through some manic, histrionic Look-at-me show down by the river.

And in breaking news, the Duke prosecutor – the prosecutor! – is up on ethics charges before his state’s Bar Association. As opined previously on this site, the sex-offense Script that spawned the Iraq War script is starting to run into the unspinnable reality of its own consequences just as the war it spawned has been doing for a while now.

The poor guy was just following out the role of prosecutor in the Script: He actually said it all when he defended himself by saying “I was trying to reassure the community, to encourage people with information to come forward”.

These phrases are now as loaded but as readable as any of the old Soviet-era phrases, the mere utterance of which told the alert citizen exactly what was going on behind the curtain and just how much danger he (or she) was in.

“Trying to reassure the community”: in our modern American reality this translates out to I wanted to bang the bell and let folks know I was on the job and that we’ve got another one coming on stage shortly – come on down early and bring your outrage.

“To encourage people with information to come forward”: the kicker here is “information”. In our modern American reality, such “information” may be an unsupported memory, a repressed memory, an impossible-to-confirm scenario, or – what the hey? – an undigested bit of beef. Encouraging people to come forward with this sort of stuff, when – as it is now generally well-known – courts and judges are bound by new Rules and practice to accept without any undue questioning just about any statement short of ‘Martians’ that is declared to them, and are hesitant to incur wrath of the public (which has just been advised through ‘reassurance’ that there’s doin’s afoot down at the courthouse) … this is the equivalent of throwing chum in the water when you’ve seen a shark fin.

But of course, it serves – in best Soviet style – the purpose of providing such a welter of attention-grabbing and emotion-grabbing variables that the thinness of the actual initial facts is forgotten. But in the best tradition of the theatre, the trial will go on. And the Cause will be served.

The consequences of this long indulgence, of this long period of playing with Soviet-style matches are only just dawning on us. But like many other consequences we shall have to face in the coming year, we shall have to collect ourselves, brace ourselves to our duty, and face them. I can’t help remembering Irving Berlin’s “Let’s Face the Music and Dance”: it was not only the thought held conceptually in the lyrics, but that ominous counter-tone playing along just under the melody. Scared to go out on the big stage? Come on, the troops we sent to Iraq have been out on it for quite a while. We owe it to them.

Meanwhile, poor prosecutor Nifong is finding out what happens to a man who was running around the musical chairs a little too vigorously to notice that the band was starting to slow down. And when the devil turns round on him, what will protect him, the laws being all flat? (Bless you, Robert Bolt). The laws, the very spirit of Law, is much flattened in our modern American reality. Due process, rules of evidence, statutes of limitation … all much flatter. What will protect him now? But there is good news: what has turned round on him is not the devil, but Truth (mutually reinforced, I’m going to imagine, by Justice). So, this is a good thing. He may disagree, but we are reminded of what Harry Truman is reported to have said some time after he earned his famous nickname: I never gave anyone hell – I just told them the truth and they THOUGHT it was hell. Come back to us, Harry – we’re ready to do our homework now.

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In “Bartkus v. Illinois” (1959) we are again back to this “sovereignty” issue. An accused was tried and acquitted in Federal District Court for a crime (bank robbery) committed in Illinois but that had a Federal connection. Federal prosecutors then called Illinois prosecutors, worked with them, and Illinois brought its own charges, and convicted him.

The State and Federal prosecutions “were separately conducted”, the Court said, apropos of something. Yes, the FBI had contacted Illinois, and the FBI had turned over all of its evidence to Illinois, and yes, some of that evidence had been gathered after the acquittal in Federal court, but “the only other connection [!] between the two trials is to be found in a suggestion that the federal sentencing of the accomplices who testified against petitioner in both trials was purposely continued by the federal court until after they had testified in the state trial.” Gee. Nothing else? This evidence, says the Court, “does not support the claim that the State of Illinois … was merely a tool of the federal authorities, who thereby avoided the prohibition of the Fifth Amendment against a retrial of a federal prosecution after an acquittal.” Or that “the Illinois prosecution was a sham and a cover for a federal prosecution, and thereby in essential fact another Federal prosecution.”

Both the State and Federal governments retain the power to impose criminal sanctions. The question, though, that’s of concern relating to military justice is not whether there can be [and it’s questionable] a worthwhile division between Federal and State ‘sovereignties’, such that the Constitutional authority of the Federal courts to conduct criminal process can exist distinct from the State courts’ authority to conduct criminal process. The question that’s of concern to our military justice matters is whether the Federal ‘sovereignty’ can be further subdivided within itself, such that the authority to conduct Constitutionally sufficient criminal process a) is even theoretically assignable the military and b) whether the military can ever do a sufficient job of it. The Federal power that is referred to in these cases is the Article III power to conduct that criminal process, and it is distinguished from the court authority authorized by each State’s constitution to conduct criminal process for that State’s laws.

But what the military would have us believe is that in addition to the Federal criminal process power assigned by the Constitution, there can also be a sort of third sovereignty, a subset of the Federal, whereby the military is directly delegated by Congress (Article I) through the Executive (Article II) to conduct criminal process. We have here an initially dubious distinction – a distinction, perhaps, without a difference – between Federal and State ‘sovereignties’, and on top of that uncertain foundation the military wants us to have confidence in a Rube Goldberg scheme whereby Congress is able to delegate to the military – through the Executive, the President – its authority to suspend citizens’ Constitutional rights. Would you buy a car with a propulsion system this convoluted? Does the sudden introduction of “the President” into matters of Constitutional court trials sound familiar to a reader in 2006? But this is the type of trouble you’re going to get into when you try to square the circle of military justice.

And while Congress has the power to say what is a crime and what isn’t, it isn’t nearly so clear that Congress can erect its own court system – without the Constitutional safeguards of the Constitutionally-endowed Article III courts – in order to try those accused of such crimes.

Although he is dissenting, Huge Black lays it on the line: “The Court’s holding further limits our already weakened constitutional guarantees against double prosecutions … the Court apparently takes the position that a second trial for the same act is somehow less offensive if one of the trials is conducted by the Federal Government and the other by a State. Looked at from the standpoint of the individual who is being prosecuted, this notion is too subtle for me to grasp.” It isn’t the only one in all of this. And with a candor and insight not seen in public offices any longer: “It (the contention in England that one can be tried twice if each trial is conducted by a different county, because one act becomes two, one for each county) was discarded as a dangerous fiction then, it should be discarded as a dangerous fiction now.” Advice that hasn’t gone stale over time.

And – no this isn’t witchcraft, just plain old-fashioned common sense: We should “avoid the evil approved today … Ever since 'Lanza', people have apparently become more accustomed to double trials, once deemed so shocking, just as they might, in time, adjust themselves to all the other violations of the Bill of Rights should they be sanctioned by this Court.” We might not even realize all that we’ve become ‘adjusted to’ in the half-century since Black wrote this. But if we look back even 10 years, we can see how much has changed. Nor can it be asserted that 9-11 “changed everything”. Not when ‘everything’ includes the most fundamental guarantees of the Constitution and a modern government that – true to its species – is always on the hunt for a chance to gorge.

In “O’Callahan v. Parker” (1969) the issue was whether a court-martial has jurisdiction to try a service-member for a crime committed off-duty, off-base, and had no connection to the service or the military.

The Court starts off by misquoting the Fifth Amendment, omitting the comma as did the Chief Justice Davis in “Milligan”. But it then goes on to state baldly: “A civilian trial is conducive to the protection of individual rights, while a military trial is marked by retributive justice”.

The gist of matters was that the Court held that for a court-martial to have jurisdiction, the crime of which the service-member is accused has to be “service-connected”. But it grants without comment that “the Constitution … recognizes that the exigencies of military discipline require the existence of a special system of military courts in which not all of the specific procedural protections deemed essential in Art. III trials need apply.” Again the deference to the military, since the Civil War. The minimizing of the significance lying under “all of the specific procedural protections” is not laudable: it is those very procedures that embody the magnificent and precious abstractions Justice and Liberty. If the procedures get cracked open, then those abstractions are in danger.

While quoting some of the meatier assertions of “Toth”, and noting on its own that “military courts … [are] generally less favorable to defendants”, it asserts that “few would deny” such a system “is necessary to an effective national defense establishment”. Again, “few would deny” is a kind of weak justification for such a fundamentally anomalous system; but there isn’t any clear ground for a full-blown military justice system with authority to prosecute the entire civilian criminal code. The Court has to be creative or … take its cue from really top-notch illusionists and divert the rubes’ attention. A project for which the JAGs and their roadies are ever ready, willing, and able.

But after this tortured back-and-forth, the Court ends strong on the downbeat”: “History teaches that expansion of military discipline beyond its proper domain carries with it a threat to liberty”. You wonder: a system this dangerous to liberty isn’t going to suddenly improve simply by being confined to its proper sphere. Granted it’s better for all of us that it is as closely confined as possible, but physics tells us that in a confined space it’s only going to get more intense – and intensely dangerous – for the service-members. As if they didn’t have enough trouble.

Contrary to History-According-to-JAGs, “the 17th century conflict over the proper role of courts-martial in the enforcement of domestic criminal law was not, however, merely a dispute over what organ of government had jurisdiction. It also involved substantive disapproval of the general use of military courts for trial of ordinary crimes”. There follow several pages of closely-examined history of English and American court-martials.

And then, in Note 18, the Court takes the Fifth Amendment problem by the horns: “It has been suggested, at various times, that the phrase ‘when in actual service in time of war or public danger’ should be read to require a grand jury indictment in all cases ‘arising in the land or naval forces, or in the Militia,’ except when the defendant is in ‘service in time of War or public emergency’. Now they started off so well, but then chickened out, because by ceasing the direct quote and paraphrasing on their own about ‘the defendant’ they dissolve the powerful impact made by the simple text in all its clarity. We then find out why they did it: “It was decided at a very early date, however, that the above clause modifies only ‘Militia’”. Such vagueness, and no clear Constitutional text to back it up; but a very clear Constitutional text saying the opposite. It goes on to quote “Johnson v. Sayre”, but we’ve seen where that goes.

In “Parker v. Levy” (1974) a Vietnam-era medical officer working Stateside was nabbed for refusing to train Special Forces medical personnel on the grounds that it was unethical. The Court again tries to explain the military justice theory: “Because of the factors differentiating military from civilian society, Congress is permitted to legislate with greater breadth and flexibility when prescribing rules for the former than when prescribing rules for the latter …” It’s kind of roundabout way of saying what the Court would rather not say in the clear: We can’t explain why, and we definitely don’t want to talk about the comma-problem in the Fifth Amendment, but we say that Congress can not only suspend some of your Constitutional rights [and this is before you’re ever convicted of anything] but it can also make you stand trial in a kind of sorta-court where your full protections have been watered down.

But the Court doesn’t stop there: the standard of evidence that applies in military trials is that applied to criminal statutes in economic affairs: “… and the proper standard for review … is the standard that applies to criminal statutes regulating economic affairs …” That standard is one of the lowest and weakest of all the possible standards in the judicial stable. But not to worry: “ … the consequent necessity for discipline may render permissible within the military that which would be constitutionally impermissible outside it”. In other words, this is unconstitutional, except that the military gets to do it anyway. Just trust us. And please shut up.

“Just as military society has been a society apart from civilian society, so military law is a jurisprudence which exists separate and apart from the law which governs our federal judicial establishment.” So a separate ‘society’ gets its own laws and procedures that may be constitutionally inadequate for criminal process? Do the Amish? The Mormons? General Motors? It later comes back to this line of thought, referring to “the military community and the civilian community”, and thus flowing from the two ‘communities’, there are two systems of law, “military law and civilian law”. Now whether ‘community’ is Constitutionally relevant here is an interesting question; the whole point of the Constitution was that its guarantees were intended to apply totally to all citizens – no exceptions (except to some extent in that verrrry interesting Fifth Amendment).

Referring then to the UCMJ the Court says “That Code cannot be equated to a civilian criminal code.” Fair enough, but somehow its ‘convictions’ are criminal convictions … and how exactly does that work again? If the military justice system can’t do criminal process, then fine – but then why go and endow it with the Court’s seal of approval precisely as a criminal justice system?

Cutely, the Court notes that while the UCMJ might impose the death penalty, its lowest range of punishments is far less severe than in corresponding civilian law. But of course! In the Stalin plan (which Uncle Joe may have gotten from the JAGs in the first place) you can make any guarantees and ink down any ‘sentencing and punishment’ schedules you want, because your lads are going to settle every defendant’s hash anyway.

And “legislating with a greater breadth and flexibility” is way too kewt for what’s been done here: Congress has punctured the watertight doors protecting our rights and then gone and sent us to sail in the rights-unfriendly seas of the military justice system.

Justice Blackmun dissents, with the Chief Justice joining him. But only to support the idea that the Army’s standards should not be brought down to the levels of the civil law, but rather its law should reflect its higher standard of honor. Well, using a law to enforce an honor code is something that could be done. But in the context of the U.S. Constitution and its guarantees, this is an odd argument: The Founders were concerned to protect the rights of citizens from government incursions, not to ‘build a society’. They already had a society in 1789. In fact, keeping the government in its own caged preserve was precisely how those sturdy citizens planned to keep their society. It has only been much more recently, given the corrosive effects of capitalistic consumerism, that the military has come to be seen as more ‘honorable’, more efficient, even more ‘American’ than civilian society. If we have come so far from the world of 1789 that this is true, then we are in a heepa trubble. And we might as well face it. But we’ll need to decide first. It may be that we have simply been comparing the military on its best days and civilian society on its worst. Using the military to ‘spackle’ up civilian society is a sad commentary; and it can easily lead to something far more tangible: using the military to enforce civil law.

Justice Stewart, dissenting, quotes the Court in “U.S. v. Reese” that “It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could rightfully be detained and who should be set at large.” Eerily, this is exactly the legislative stratagem underlying both sex-offender Registries and the round-up, imprisonment, and occasional ‘rendition’ of ‘terrorists’ in the Middle East – except that in the Middle East the government has a much better shot at doing the catching and then refusing to let the Court in, even unto this day.

In “Gosa v. Mayden” (1973) an airman accused of rape questioned the jurisdiction of the court-martial to try him. The Court is constrained to remind us that as critical as “O’Callahan” may have been of the military justice system, still that decision “was not based on any conviction that the court-martial lacks fundamental integrity in its truth-determining process”. Which is very accurate – as far as it goes. The problem in the military, though, is not its ability to find truth, but rather what it wants to do with truth once it’s been ‘secured’, as they say. Once again, the Court happily chases the wrong car down the freeway, letting the actual culprit drive off gently, to do his thing yet another day. This isn’t the Keystone Cops, though; those guys – though laughable – were always on the level; bumblers they were, but nothing more. Reading some of these decisions, even the redoubtable Huge Black’s, you have to ask yourself if all of these folks over all of these years, have passed over the key issues entirely by accident.

And anyway, the Court continues, suppose that we made “O’Callahan” retroactive, so that the service-connected criterion had to be applied to all courts-martial preceding it. The government claims that such a task would impose a terrible hardship on the government, let alone quite possibly be impossible to accomplish. Once you’ve been doing it long enough, it’s too much trouble to go back and fix.

In Footnote 5 the Court notes that “ … the military system of justice has never been understood to be constitutionally compelled to provide many of the procedural rights afforded by the civilian courts, and thus it would always remain free to provide only that which is constitutionally necessary.” But this is a red herring, surely. We’re not concerned for the “procedural rights” – it’s the fundamental Constitutional rights that, as even the Court admitted, cannot be provided by the military by the very nature of its operating principles. And in the Stalin plan the military can guarantee as many things as it wants, and toss in as many props as people would like to see on stage. But a truly independent judge, a truly independent jury, true adversarial practice on a level playing field – the military cannot provide that. The vampire has to insist, with a charming and pious smile, that everything be conducted “after sundown” and wouldn’t we please make this one little teensy indulgence to the Count’s .. ahhhh .. eccentricities? The Court indulges itself at great expense and distracts us, by minimizing the nature of the military’s demands on Constitutional justice and focusing on secondary matters. This isn’t the county fair.

In “Middendorf v. Henry” (1975) the Court had to consider whether summary courts-martial (the lowest grade, that can only award a maximum of 30-days confinement) require the presence of Counsel. The summary court-martial is a procedure between the service-member and the commanding officer.

The Court – perhaps saying more than it meant to – describes general courts-martial in that “they resemble judicial proceedings”. Which, in the Stalin plan, they not only can do, but should do, and can easily afford to do. Further on , it describes them as “the court-room type procedure of the general and special courts-martial”. Ditto.

It quotes itself in “Burns v. Wilson” (1953): “The rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty, and the civil courts are not the agencies which must determine the precise balance to be struck in this adjustment. The Framers especially entrusted that task to Congress.” Well, but the civil courts, including the Court itself, is very much the agency to determine if those men’s rights are being violated. And a “conditioned” right is like a “conditioned” pregnancy: it isn’t. And the Framers entrusted the balancing to Congress, but included the huge reservation in that Fifth Amendment.

In “Solorio v. U.S.” (1987) the Court reversed “O’Callahan” and said that simply being in the military placed one in the jurisdiction of the military justice system; it was not necessary to try to figure if the crime fit the criteria for being “service-related”.

The Court, through Chief Justice Rehnquist, takes a brief moment to claim that the history of English and American court-martial praxis in “O’Callahan” was “ambiguous” [that history extended for 3 close-typed pages and further was liberally seeded through a subsequent 12 pages of Notes]; it offers no elucidation on in what ways the history was “ambiguous”. It then quotes Clause 14 of Article 8, Section 1 to again assert that Congress has the right, vested in it by the Constitution, by a form of implication within the right to make rules for military governance, to authorize “the general use of military courts for the trial of ordinary crimes”.

It references as a support the Fifth Amendment, but only quotes the phrase “cases arising in the land and naval forces”; that is not the key issue in the text of the Fifth Amendment, as we have seen. It then, however, claims that the history of 17th and 18th century court-martial praxis here and in England is “too ambiguous to justify the plain language of Clause 14”. But again here: while it sounds incisive, Clause 14’s language, while perfectly grammatical, is conceptually open-ended, and utterly so. To read the Clause, one has to perform the mental work of adding even that the limitation that Congress’s power must conform to the Constitutional guarantees; that's how open-ended the actual language is. But even then the Court will only grant that limitation if those Constituional guarantees are watered down. And the Court here, despite its pious nod to “plain language” falls right into line by ignoring the utterly plain language of the text of the Fifth Amendment.

But it is in this case, finally, in Justice Marshall’s Dissent, that things are said that should have been said long before. He comes to his point quickly: “Today .. the Court … disregards constitutional language and the principles of stare decisis in a singleminded determination to subject members of our Armed Forces to the unrestrained control of the military in the area of criminal justice. I dissent.” And then, in what starts off as the usual nod to the wrong part of the Fifth Amendment he says: “But the text of the exception is inconsistent with the majority’s conclusion that the only relevant factor in determining whether a court-martial has jurisdiction over a case is the status of the defendant as a member of the Armed Services.” Is he going for the gold here?

He asserts that “The protections afforded individuals by the Fifth and Sixth Amendments are central to our constitutional scheme of justice … These protections should not be lightly abrogated. Consequently, the exception in the Fifth Amendment for cases arising in the Armed Forces must be strictly construed [i.e. that such cases must be military, service-connected offenses]. He reminds us that “not until the enactment of the Uniform Code of Military Justice in 1950 did Congress attempt to give courts-martial the authority to try crimes of murder and rape committed in peacetime within the United States … Common-law felonies in peacetime were only brought within court-martial jurisdiction in 1916 … The relatively recent expansion of the authority of military tribunals appears to disregard the Framers’ understanding.” So much for the JAGs’ purring assertion that courts-martial have been a happy sibling in the criminal-justice family since before George Washington.

And then, in Footnote 5 of his dissent, Marshall says it (and I quote it in full): “The language of this exception could be understood to mean that ‘cases arising in the land or naval forces’ as well as in the militia, are only excepted from the requirement of grand jury indictment or presentment ‘in actual service in time of War or public danger’. This Court, however, has interpreted the ‘time of war’ provision as referring only to cases arising in the militia, not the land or naval forces. I am not convinced this reading of the Fifth Amendment is correct …” It had taken almost 200 years.

Wider Concerns

We cannot fail to note that many of the major elements in the history and dynamics of military justice appear to be operating in the present Administration’s programs (which may yet bring on a Constitutional crisis after the new Congress convenes, and which has already sparked numerous court-challenges). The emphasis on Results rather than on the Integrity of the Process, the minimization of significant erosions of Constitutional guarantees to citizens, the overriding recourse to commanding authority as a justification for dubious actions, the almost defiant absence of a sense of accountability, the continual recourse to the exhortation to ‘just trust us’, the selective use of evidence, the visceral apathy toward the accused, the ongoing effort to shroud the actual operational dynamics in secrecy while citing the needs of ‘national defense’ and ‘military necessity’, the ruthless effort to ‘own’ and thus control all the significant players. And of course there is the awe-full erection of Military Commissions (distinct from courts-martial). And there is the gnawing undertow trying to pull down the wall of Posse Comitatus and enable the enlargement of the military (and its justice system, no doubt) into civilian society (and civilian justice).

Nor can we fail to consider that a system like this must always misrepresent itself, must always – frankly – practice deceit. And what effect does this have – especially when extended over time – on its victims and also on its practitioners?

And can we fail to realize that many former JAGs are now in prosecutors’ offices, or on the faculty of law schools, or sitting on benches throughout the Federal or State or municipal court systems? And that many former military personnel are in police agencies, their influence visible in rank insignia, equipment, and even Service stickers on their official vehicles, and where their Results-oriented approach to things cannot but fail to exert an even deeper influence?

This is not to say that the system should – or can – be done away with overnight. But it has engorged far beyond its original scope, and its own sustained deceptiveness as to its past and to its actual operating dynamics does not speak well of its intentions or – frankly – its integrity.

There are – as just this incomplete review of Court cases indicates – some very large and fundamental problem areas.

Solutions – an independent judge and jury, a truly adversarial process on a level-field – present themselves.

But we must understand that this system has never truly reformed itself, even when ordered to do so by the President himself. Give-em-hell Harry Truman ordered ‘command influence’ to be eliminated; it was the same complaint that had arisen immediately after World War 1. When Truman finally had to sign the UCMJ enabling legislation he said bluntly that ‘command influence’ had still not been eliminated. Fifty years later, in 2001, the Cox commission examined the system and concluded (after one of its prestigious civilian members resigned in disgust) that it mostly worked, although there might be that there was still a tad too much command influence and a tad more tweaking might eventually be in order, and was certainly worth considering, at some point. A few months later, 9-11 transpired, and not only did we not hear anymore about the matter, but – as we are coming to find out now – the JAGs and their system participated in a massive subterranean engorgement that – until the photographs came out and then the war went south – included Abu Ghraib and still includes Guantanamo. The Navy lawyer who actually stood up for some of the accused – and was successful – has been passed-over for promotion, which in the military means that his career is effectively ended.

The system has survived for a long time because, with the exception of the World Wars, it had direct influence only on service-members. But recent legislation has opened paths for it to expand into civilian life. Its philosophy has already taken root in the current Executive Branch, and has moved out into civilian law enforcement – all to our great detriment.

Its tires certainly deserve to be kicked by those who are paying for it in more ways than they know.

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Thursday, December 28, 2006


Walter Shapiro writes about Gerald Ford today in Salon (

Shapiro thinks Ford did the right thing – pardoning Nixon and thereby precluding any further investigation into things. Ascribing complaints about that closed-off inquiry to “Nixon-haters” Shapiro then goes on to bray “America is simply not a banana republic in which former presidents should face the prospect of prison or ruinous civil judgments after leaving office”. Stop it. Stop it right now. It’s clear he’s concerned for appearances, not substance. In substance America - in its Executive – very much HAD started to behave like a banana republic. And when Shapiro asserts that our presidents shouldn’t face trial and lawsuits after they leave office, he’s once again concerned for appearances and not for substance. Because while we absolutely do not want to behave like a banana republic in the sense that a defeated opponent or simply a predecessor is hounded (perhaps to death) simply as one of the perks of victory or as the price of no-longer-being-in-power, yet we very much want to prevent becoming a banana republic precisely by holding those formerly in authority accountable for crimes they committed when they did hold power. We cannot and must not allow a political class of former honchos to develop, who – despite all their alleged and possibly apparent crimes – yet live in respectable luxury into their dotage like the recently-deceased Pinochet or Count von Kissinger or – of that same class – members-soon-to-be who still haunt the halls and dark alleys of Washington City. If we allow that class to develop, then we indeed will become a banana republic. And let’s not forget that Impeachment was put in there by the Founders precisely to cover the “treachery” of a Chief Magistrate (or his Vice). And it’s only a sign of our debauched times that it could even be suggested that blow-jobs qualified.

By pardoning Nixon – however decent a man Ford personally was – he gave things a huge push down along the path to non-accountability. No doubt the toilet-clogging dimensions of the crimes perped by the Reagan-era honchos was fueled by a sense that Hey, Nixon got off so what the foo? And included in those honchos is the father of the Incumbent, nor can we permit ourselves to imagine that apples don’t fall far from trees.

Worse, Ford prevented us from what may well have become a hugely salutary encounter with Truth, a deeply needed reality check. A People still reeling from the insidious manipulations of the National Security State was just beginning to come under fire from the opposite direction, from the 3rd and 4th level Advocacies of the Revolutions of the Identities. The People needed a reality check because America had indeed behaved – in its Executive – like a banana republic. And the best thing that could have happened was for The People to ask themselves what they had been doing or not doing which enabled this dreck to go on at the highest levels of the Republic (and yet it’s so easy to harrumph like an elephant and emit high-pitched gasps at the American Kathlik bishops, who – admittedly – continue to be low-hanging fruit).

But no. The People were treated like children and allowed themselves to be infantilized: give them the ongoing Pageant-of-America stuff, let them go to the beach or the mall, and if they’re male then let’em start worrying about their jobs and their wives turning them in for domestic abuse. Is there any mystery to the fact that in 2001 another Administration – crewed by ex-Ford honchos – figured it could run the same play, since The People had become even more debauched in the ensuing decades? Is there any mystery to the fact that in 2000 the Supreme Court figured it could get away with interfering in an election process and simply handing the election to somebody? And isn’t that itself one of the hallmarks of a banana republic? One of the warning signs?

Yet will The People, like a small child in a divorce battle, simply keep looking for some body ‘big’ to save them? Or will The People start to inhabit the public space and the role and the responsibility which is assigned to It/Us? Or is the concept of ‘The People’ itself become ‘quaint’ in this age of hyper-imperial American power? Is it that there is no room for The People, no need for The People, in the ‘unitary Executive’? If no need for The People, then why any need for a Constitution, the only purpose of which was to limn and limit the powers of the Branches so that the government could not – as these animals ferae naturae always eventually do – turn on The People and devour them. We don’t need Bolt’s “devil” to turn on us; we’ve cut down not only the laws but our own selves in our role as The People – and into the vacuum thereby created there are now racing plague-stuffed winds.

Did Sinclair Lewis say that when fascism comes to America it will come waving an American flag? Yes but more: it will come wielding the Book of Revelation. Wielding that Book as a weapon and as a totem – as an idol even – and not as a source of the adamantine Wisdom that there will be a Reckoning for each and for all, and that no human can control the judgment of that Judge, and that while we might if we wish look forward to it at the end of the day, we are best advised to keep ourselves occupied with walking humbly before our God and doing justice. Or, to repeat a fundamental American text that can never be too-often repeated: “to care for him who shall have borne the battle, and for his widow, and for his orphan; to achieve a just and a lasting peace, among ourselves, and with all nations.” This will take a lot of work – let us give thanks we’ve still got it and get on with it.

Robert Scheer writes in “Ike Was Right” ( of Eisenhower’s warning about the “military-industrial complex” (he pretty much invented the term), now a couple of weeks short of 46 years ago. Ike’s advice was that “We should take nothing for granted, only an alert and knowledgeable citizenry can compel the proper meshing of huge industrial and military machinery of defense with our peaceful methods and goals …” Have We The People managed to do that? What has been done in Iraq – have We allowed that? If so, then we shall answer for it. If not, then We are still responsible for it. And for the dead, and for the widows, and for the orphans … blood is crying out from the ground: in Iraq, in Arlington, in a thousand cemeteries here and abroad.

Are we the alert and knowledgeable citizenry that Ike realized was essential to the taming of this postwar military-industrial National Security State? Or have We become something much less?

Ike goes on to assume and to hope that “We want democracy to survive for all generations to come, not to become the insolvent phantom of tomorrow”. Funny he should mention “insolvent”, no? And do we care about “future generations”? Does their well-being provide a motive for getting out of bed in the morning? For taking the extra effort to think something through, or ask ourselves the Greatest Generation’s Great Question: Is this trip necessary?

Norman Solomon announces the P-U-litzer Prizes for 2006 ( The Pulitzer Prize is not what it once was, if it ever was that. One “New York Times” guy got it in the ‘30s for reporting what a great place the USSRwas under its strong and wise leader. The “Boston Globe” got it a few years back for its investigative reporting during the run-up to the Iraq war – only the Globe was investigating something else, having to do with sex. You wonder if maybe the Pulitzer doesn’t need to be retired – temporarily or permanently – like the Presidential Medal of Freedom, now that it is hanging on the walls of such as Tenet, and Franks and Bremer – the latter two literally choppered out of town because the exit roads were no longer safe for their victorious SUVs – or even for their tanks. Nor did they stop to mitt the crowds on their way out of the White House grounds nor take a victory lap over to Arlington.

One of Solomon’s awardees is Glenn Beck, a CNN … personality, I guess is what you’d have to call him. Beck delivers a fine example of the Right’s co-optation of the language of ‘sensitivity’, of ‘female liberation’, and of ‘concern’, a classic instance of Evil hiding behind the appearances of (apparent) Good: To a newly-elected Congressman, a Muslim, whom he is interviewing, Beck says: “Sir, prove to me that you are not working for our enemies.” Shrewdly, he covers himself quickly with “I know you’re not”. Then gets the money-ball rolling again with “But that’s the way I feel, and I think a lot of Americans feel that way”. Masterful, really.

Solomon goes after Beck as a bigot, but there is a far greater evil here, a couple of them. The lesser of them is that co-optation of ‘nice’ language, of perfect ‘politically correct’ language: here it is deployed not to model a calm and open mind, nor to facilitate the discovery of Truth, but rather to lubricate the insertion of an actuality that is hell-and-gone from Truth, let alone Justice and Charity. Yet this is what has happened in this country: the decades-long imposition of ‘political correctness’ - albeit in a Good Cause – undermined and indeed perverted the primacy of Truth in this country. Truth could be constructed later; the best thing you could do was to make sure that the Result required at this stage of the (fill-in-the-Identity’s) Revolution is achieved; Results, not Truth or Integrity is all that matters – my, and how coincidentally military.

And that Political Correctness, having been erected into almost a free-standing institution, was ripe for subversion: by the ‘conservatives’ (who were themselves being taken over by the whacko-Southron-Fundamentalist axis) as well as by the unsleeping government, even alert to opportunities for expanding and engorging its power over the citizenry.

And worst of all, Beck’s gambit reveals the bottom-feeding gambit (perfected by Rupert Murdoch in our day) of appealing to the most inferior elements in human beings, to the dark suspicion and reflexive revulsions and hatreds, the squishy-hot muck that underlies all of our personalities (as Freud built his career on) BUT that does not – although primal – define us in our Fundamental and Genuine aspect, where – under Grace, according to a once-popular theory – we can refine ourselves, dwelling in our less-inferior, more-superior and ideal selves.

Again, to our huge detriment, it was the ‘science’ and ‘philosophy’ embraced by some of the Revolutions, certainly surfed by them, decades ago, that helped undercut the elements of existence that had for so long nurtured the steady refinement of human crude into its more ideal manifestation, into the broad, sunlit upland of a soul – and a society of souls – humbly but vigorously making the climb up the Ladder of Self or – if you will, adding another level to the vision – the Ladder of Perfection, or – again – the Ladder of Grace (more recently characterized, however inaccurately, as the “stairway to Heaven”).

Now, its fuel derived from the long pent-up energy of dissent against the doings of the aforesaid Revolutions, ‘muckraking’ took on a new meaning: not the old Progressive searching through wastebaskets and in the dark alleys for proof of gluttonous corporate malfeasance against the little people, but rather a raking intended to stir up the baser elements in viewers and listeners and readers. And the intense focus on ‘feelings’ to the exclusion of ‘thought’ (that ancient tool of patriarchal oppression) removed whatever watertight doors might have served to stanch the flow from below. Indeed, Limbaugh’s early TV years were actually a breath of fresh air as he simply reported accurately things which the PC MSM (wheeee!) suppressed out of loyalty to their allies, the not-yet-quite-victorious Revolutions. But then he gave in to the illusion that people were tuning in for him rather than simply for truth, and it was downhill from there.

We are at the point not only where such abuse of the Truth is possible and remunerative, but where a ‘news’ show can confine itself to ‘feelings’ (however base or confused) and still hold itself forth for public consumption. And … No, we can’t look to the government to suppress this crapulous dreck; the last thing we need to do is to be inviting that vampire over any more thresh-holds in the Republic. We The People need to demonstrate our distaste by speaking our minds and not-watching and discussing, until the purveyors of such tainted meat-for-the-mind find their ‘business’ no longer profitable. And in order to do that truthfully, in order to serve Truth, we must first shape ourselves to recognize and respect Truth. There is no short-cut. Just as there wasn’t any short-cut to Revolutionary goals through a stifling PC nor any shortcut to victory in Iraq by ‘shock and awe’.

No short-cuts. Just the long climb of the People, up from Inferiority. Into increasing Light. And Liberty.

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Wednesday, December 27, 2006


It’s been noted elsewhere on this site that the Incumbency did not create the present awful mess by perverting the principles of military justice and its vaunted court-martial system, but rather arrogantly expanded the actual operational dynamics of military justice into a wider field. That the gambit is now failing, that we are losing, that we Americans are at risk of appearing to be losers – all this is the thorn in the lion’s paw just now.

For a moment back there in the Fall, just before the Military Commissions Act (MCA) was passed, we were treated to the JAG bosses swinging into their favorite vaudeville routine: standing tall as dedicated lawyers and flag-rank officers, speaking up for Truth, Justice, and the American Way (supermen without the kinda gay tights). That they had kept quiet throughout the entire previous five years, that they presented themselves to the cameras only when the war on the Eastern front was going irretrievably south and there was increasing talk of war-crimes trials for its perpetrators – these points begged to be made. Then, in a remarkable coincidence, our fears were allayed just before the vote was taken in Congress when three of the military’s staunchest roadies in the Senate – McCain, Warner, and Graham (himself a high-ranking ex-JAG, Reserve Jag, and judge in the military system!) – put themselves forward and assured us that the Thing shall not pass. And then it passed immediately thereafter, themselves claiming that they were content. We were apparently meant to trust them because they had had the ‘courage’ to oppose it, and if they then approved it, well – they were guys we could trust. If you tried this sort of thing on a table at the county fair the sheriff would run you out of town before the sun went down.

Now we hear that somewhere in the government bureaucracy the procedures for a draft are going to be tested; not to worry – just a test, like you’d test the fire alarm system to make sure it works; but there’s no fire, so don’t give it a second thought. Meanwhile, the military justice system wants to subpoena Truthout, a civilian news organization, in connection with its courtmartial of one Eric Watada, a Captain in the Army who – following obligations laid upon him by military regulations and his oath of commission – refused to obey what gives no small indication of being an illegal order to go fight an illegal war.

No doubt we will soon be treated to yet another round of JAGs, ex-JAGs, and JAG roadies commenting with smarmy-smooth, purring calculation about how the system works, and works so much better than civilian justice, and is a wonder of civilization – if they do say so themselves.
So a coupla things here, to fortify us for the trials to come.

The military justice system represents the nation’s centuries’ long effort to square an impossible circle: how to preserve the absolute primacy of command authority and troop discipline while at the same time respecting the wide Constitutional rights guaranteed to citizens in the matter of justicial process. All the service-members are American citizens and their Constitutional rights are large and wide, yet how can you run a military if the General loses a case to a Private?

The American military ran into this problem full-tilt, the first military ever to have to face it fully. No other military in the history of the world had to draw its members from a population so widely and deeply protected from the intrusive police power of the State. Yes, the Brits had increasingly run into the problem in the centuries following Magna Carta, and especially as Parliament began to wrest power from the monarchy. The Brits allowed as how soldiers could be court-martialed, but only for violations of the Articles of War; for all other offenses the accused had to be delivered up to the civil courts, the assumption being that the tender professional mercies of a military trial were to be reserved only to times and situations of absolute necessity and otherwise the beast was to be given as little leash as possible. Sailors presented a different problem because those Royal Navy ships were often all over the world, most of the time at sea out of reach of any civilian judiciary, and since a ship was always in danger – of sinking, even in peacetime – the captain of one of His Majesty’s ships had perforce to enjoy an almost godlike authority over his crew. Which is not to imply that godlike authority confers godlike wisdom or maturity, even in as unitary an executive as a captain of one of His Majesty’s ships.

During the American Revolution itself there was – more than we’d like to think – an especially urgent need for strong discipline, and Washington himself was not hesitant to ensure it. Afterward, following that struggle and subsequent to the adoption of the Constitution and the Bill of Rights, the long – doubtless eternal – struggle to define the boundaries of ‘military justice’ began. It has not ceased, even though the JAGs today would like us to simply accept that ‘military justice goes back to Washington himself and to the Constitution’, and then sit back with our patriotic popcorn as they swing into their well-rehearsed vaudeville about how their system perfectly balances the needs of commanders with the rights of accused service-members, and crisply trot out assorted dog-and-pony shows or PowerPoint presentations, stroking their chins thoughtfully and benevolently as they explain this or that aspect of the Great Arcana for which they are the (very nicely remunerated) high-priests and keepers of the mysteries.

But such a rose-covered-cottage description of the thing is not all that accurate. There are numerous reasons to kick the tires of this thing, but even more reasons to approach it verrry skeptically. Meeting the military justice system is like meeting Count Dracula at a soiree: he’s very polite, always well turned-out, and if he doesn’t think it prudent to eat you just now, he most certainly will want to manipulate you into not interfering with him. And, of course, while he looks like a ‘he’, what you’re speaking to very politely is really an ‘it’, and a very old and clever and ruthless ‘it’ at that. It hasn’t survived into your day by being warm, passive, and fuzzy. Or particularly honest about itself. In fact, you may only really get to know it when you won’t have a prayer of getting away from it. That sort of thing. And while in the old days the thing was pretty much kept in Transylvania, it’s been surfing the assorted opportunities presented by events to expand its range. And it is assisted by numerous lesser beings, its roadies, human but given to consuming such insects as are sent their way as reward.

There are several major categories of wrongness with the system.

The Very Nature of the Military.

A military exists for one purpose: to achieve its objective, and that objective is always To Win. It maximizes the probability of achieving this objective through a thoroughly-drilled hierarchy of authority in which each rank knows its job and is obedient to the rank(s) above it. When the upper ranks, therefore, decree that ‘we’ shall do such-and-such, then every subordinate rank knows without asking that it is to bring the announced plan to a successful outcome. In a really well-trained military, subordinates are almost preternaturally attuned to anticipate and fulfill the desires of their superiors even before the superiors express them. This is as it should be: in the life and death of actual combat, militaries cannot afford to not-Win.

Constitutionally-structured justicial process is adversarial: all the major players – judge, jury, prosecutor, defense counsel, witnesses – are independent of each other. Each has a role to fulfill, and after all is said and done, hewing to the strict requirements of due process, the jury has the best chance of making a ‘just’ finding. None of the players ‘owe’ any of the other players anything nor – ideally – are beholden to them. Out of this free interplay, Truth and Justice is – if not absolutely guaranteed – at least given the best possible shot. But you can never be quite sure what the verdict will be and how things will turn out. The objective of this system is to maintain the Integrity of Process; it is not to Win or to reach any pre-ordained conclusion, but simply to remain truthful and faithfully implement the process. The outcome is not its objective; Integrity of Process is its objective. Integrity, like so many other capital-letter words, is a luxury the military system cannot afford.

And thus the rub: you cannot run the Constitutional plan in the military setting. The civilian system is based on Process, the military on Results. The civilian system is based on independence of the major players; the military system requires each player to be a ‘team-player’ in the task of bringing Victory to the commander. Trying to run the civilian system in the military setting is like trying to land a United 747 on an aircraft carrier. Ain’t gonna happen. Can’t possibly happen. Both 747 and carrier will be wrecked if you try to mate them up.

So, of course, when the military deploys a system where the judge, the jury, the prosecutor, the investigators, most of the witnesses, and the defense counsel all belong to the same team, and when they all work for the same ‘party’ – their Service – that chose to hold the court-martial in the first place, and when all of those ‘team-players’ know that if this is their commander’s operation then their only job is to deliver Win to their commander … well, you see where things get square-circled pretty early on. When the government wears one hat to declare itself the aggrieved party and then puts on a wig to declare itself the judge … you’re getting into those old movies about justice in small southern towns and big immigrant-heavy East Coast cities in the 1890s. And those are very dangerous theme parks indeed.

Nor does it make things better to say that the judge doesn’t work for this particular commander, but has been flown in from somewhere else. The US military is a world-circling organism, bound together by innumerable bonds and ties; ‘word’ gets back that you as a judge didn’t deliver, and your boss and that boss or that boss’s boss are gonna have some words and you can kiss future promotion good bye. And if you’re brand new to the Service and you’re defending your first ‘client’, and there’s law school bills and a new wife and a kid on the way and a factory-fresh Boxster out in the officer’s lot … well, you’ve got to do some serious considering before you try to be the first Perry Mason in uniform.

So the very theory of the military and the very theory of Constitutional process are mutually incompatible. And if someone comes up to you and assures you that this circle can be squared and that as a matter of fact he represents the folks that have done it … well, there’s also a bridge in Brooklyn you might be better off buying.

The Constitution Itself

Although Hamilton very much wanted to give the central government, the national or federal government, as much power and leeway as possible, the overriding concern of the Founders was to ensure that this government – like all other governments – did not continually and increasingly obtrude itself into the individual lives of its citizens nor into the life of civil society, and especially in the matter of the government’s police power.

To that end, the Fifth Amendment was carefully crafted by these very capable folks. “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger …” It becomes immediately clear to anyone with even modest grammatical training that the significance of that comma after “Militia” is huge: Even if you’re in the land or naval forces, unless it’s a time of “War or public danger”, you have to be given the right of a Grand Jury indictment, which strongly implies the panoply of civilian criminal justice procedures guaranteed by the Constitution.

It was clear enough back then as well. Throughout the 19th century this monster of a requirement had to be finessed by the Supreme Court (because a lot of courtmartialees raised the point). Chief Justice David Davis, a Lincoln appointee, took the bull gruffly by the horns in “Ex Parte Milligan” in 1866, trying to cap a full half-century of hemming and hawing. He simply misquoted the Amendment, removing the comma altogether so that the clause read “…except in the land or naval forces, or in the Militia when in actual service in time of War or public danger …”. Otherwise, he went on to say with charming frankness, you couldn’t have any court-martials in the military in time of peace – and that, he implied, was clearly unacceptable. Unacceptable it may be, but the Founders were certainly trained well enough in English grammar not to impose such a massive requirement by mistake or inadvertence.

Things creaked on until 1895 when the Court ‘solved’ the problem in “Johnson v. Sayre” by properly quoting the Amendment but then opining, in effect, that there were two ways of reading the text. You could read it grammatically, and that was certainly one option. Or you could read it such that you simply decided on your own that the clause “… when in actual service in time of War or public danger …” only applied to the “Militia” and not to the land or naval forces. And that, the Court decided, was the way they were going to read it. This solution did not even rise to the level of a ‘legal fiction’. It simply ignored the text.

But it was 1895 and the country was getting ready to make its mark in the world and you couldn’t very well hobble your military and your navy by not allowing them to court-martial folks unless it was a time of War. Let’s be practical here, people! We’ve got an imperial agenda. So while one interpretation of ‘2 plus 2’ is that it equals 4, and that interpretation has its supporters, the government might be indulged if it proposes a broader approach, such that 2 plus 2 equals not-4, and this Honorable Court decides to choose the government’s interpretation. You could be forgiven for thinking that our modern-day Iraq war masterminds took the same Introduction to Government seminar as the Justices in 1895. Talk about tradition!

The awful prospect of bringing this fundamental problem up again seems to have frightened everybody and not so much has been made of it since then. The JAGs today would like us all to believe that the history of military justice was one smooth progress from excellence to excellence, all Constitutional sweetness and light. But it ain’t necessarily so. Not hardly.

The Legal History of Military Justice

The JAGs would like us to believe that military justice has had a bright and simple life, fitting in easily with its siblings – criminal and civil process – around the happy family table of American legal systems. Rather the opposite. The roster of cases coming up before the Federal District and Appeals courts and making their way to the Supreme Court is long indeed, and it starts very early in American history.

A quick primer here: the Constitution is divided into 3 articles, each dealing with the role and powers of one of the Branches of government: Article I deals with Congress, Article II deals with the Executive, and Article III deals with the Courts.

In “Dynes v. Hoover” (1858) it was noted that while Article I, section 8, clause 14 of the Constitution grants Congress the power “to make Rules for the Government and Regulation of the land and naval Forces”, it still has to be questioned whether Congress was thereby granted the power to deprive citizens of their rights (which they most certainly were if they were subjected to military justice). And this was before there was a draft, mind you. But, the Court went on to point out, that if courts-martial violated the regulations that created and governed them, then their doings were void; not “voidable” if anybody took the trouble to notice, the Court emphasized, but just plain “void”.

Still the Court held that the jurisdiction of courts-martial extended beyond the written articles established by Congress, to include any actions traditionally held to be punishable in the service.

The Court quotes that phrase “cases arising in the land or naval forces”, justifying the Constitutional compliance of courts-martial with the Amendment’s requirements, but studiously avoids any notice of the hugely cogent ‘comma’ question. This is a thread that will run through many Supreme Court comments up to the present day: the Court will simply avoid any notice or mention of the ‘comma’ question, and instead use the Amendment to justify the right of military justice to dispense at any time with the Fifth’s requirements.

In “Ex Parte Milligan” (1866) Chief Justice Davis (a friend of Lincoln and appointed by him) took a bolder approach, simultaneously more and less forthright. The question was whether a military tribunal constituted for war emergency in the State of Indiana during the Civil War had the authority to arrest, try and execute a citizen of Indiana, claiming that the Executive power’s authority overrode the Court’s in a time of war and in a war zone.

He adverts to the fact that “during the late wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power, and feelings and interests prevailed which are now happily terminated. Now that the public safety is assured, this question … can be discussed and decided without passion or the admixture of any element not required to form a legal judgment. We approach the investigation of this case fully sensible to the magnitude of the inquiry and the necessity of full and cautious deliberation.” I quote at length to give a sense of the seriousness of the Court and the relief that the ‘emergency’ of the Civil War was over, and thus was ended the threat to proper jurisprudence and deliberation posed by the pressures of that emergency. It is a fine commentary on how things stand today among us, where Emergency-ism has returned in an even more pervasive form and bids fair to last for decades.

He states that “civil law and martial law cannot co-exist together; the antagonism is irreconcilable”. He asserts that “no graver question was ever considered by this court, nor one which more clearly concerns the rights of the whole people, for it is the birthright of every American citizen when charged with a crime to be tried and punished according to law”. Because “by the protection of the law, human rights are secured; withdraw that protection and they are at the mercy of wicked rulers or the clamor of an excited people”. Or – we might note today – both.

He acknowledges that the emergencies of military life required Congress to make special provisions for the military and the soldier “while thus serving, surrenders his right to be tried by civil courts”. Whether this applies to draftees (then a very recent development) is an interesting question.

He observes that “this nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln, and if this right [to full Constitutional rights in a trial] is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate”. We today are perhaps not as frightened as we should be.

Noting that the State of Indiana was never invaded and that the Federal courts were open and operating, he states that ‘martial law cannot arise from a threatened invasion”. We are seeing here, in 1866, the reflection of government’s sleepless urge to extend its police power and military power over the citizenry on the pretext or occasion of anything that will bear the characterization of an ‘emergency’; precisely what for centuries English advocates of liberty and our own Founders sought to ensure against.

Chief Justice Davis, as was discussed in the prior section, simply dropped the ‘comma’ altogether without further ado.

Of equal contemporary relevance is the fact that Justice Chase, dissenting, spoke for the right of Congress, if the “privilege” of the writ of habeas is suspended, to authorize arrest, detention, trial and punishment by military commission. “The Constitution itself provides for military government, as well as for civil government” he claims, without further elucidation. And he too then misquotes the crucial Fifth, eradicating the key ‘comma’. If Congress, as an agent of the nation and in defense of the nation chooses to so deal with certain persons seeking to injure the nation, well what’s wrong with that? He is confident that “the intelligence and virtue of the people, their zeal for public and private liberty” as well as “official responsibility secured by law, and upon the frequency of elections” will serve “against the abuse of this”. And today?

And further: “We by no means assert that Congress can establish the laws of war when no war has been declared or exists. Where peace exists, the laws of peace must prevail.”

He finishes up by distinguishing clearly between Military Law, Military Government, and Martial Law. Lately, we have seen the boundaries between these three start to wobble.

In “Ex Parte Reed” (1879) the Court noted that “Courts-martial are exceptional in their organization, jurisdiction, modes of procedure, and the rules by which findings are made or judgments pronounced. In an ordinary judicial tribunal, nothing, therefore, is to be presumed in their favor”. The JAGs' current purring that things have always been peachy is a tad misleading.
In “Smith v. Whitney” (1886) however we see a deference to the military as “a special community”. Whether there is a Constitutional relevance to this ‘community’, especially since upon this basis large Constitutional guarantees are rendered less-than-watertight, is a lasting and grave question. Given the “unwritten law or usage” that has evolved in that ‘community’, then “military or naval officers, from their training and experience in the service, are more competent judges than the courts of common law”. Just trust them.

And the Court quotes approvingly a British precedent (“Grant v. Gould”), in which Lord Loughboro asserted that “it would be extremely absurd to expect the same precision in a charge brought before a court-martial as was required to support a conviction by a justice of the peace”. The idea being that in the military you’re not after legal precision and accuracy; you’re after the preservation of order and discipline by decisive action. That the wrong person might be convicted, or a person be wrongly convicted – such points are too fine to be put in the military setting. Yet the problem remains that if courts-martial are going to be allowed to imprison and even execute on the basis of their ‘trials’, then they have to be assumed to have the power to conduct ‘criminal’ process, a power reserved on the face of it to the Courts of Article III of the Constitution, which are bound to respect all Constitutional guarantees to citizens. Courts-martial are odd hybrids of everything but Article III: they are authorized by Congress (Article I) although Congress has – in theory – delegated its authority to the Executive, whose authority as Commander-in-Chief (the theory goes) actually runs the military justice system. Where the JAGs purr about how clear their authority is, and how secure its basis, one must again kick some tire.

In “Johnson v. Sayre” (1895) the Court once again had to face the abyss of the Fifth Amendment and that comma-clause. This has been discussed above. Whether the power of Congress to make rules for the regulation of the army and navy naturally lead to its being able to suspend Constitutional rights is not at all clear, although the Court has often tried to make it so.

In “Grafton v. U.S.” (1907) a solider on guard duty during the occupation of the Philippines shot and killed two Filipino civilians; he was acquitted by a court-martial but was then indicted and convicted by the Philippine civilian courts which were then acting under a Congressional mandate (the Islands had been declared a U.S. Territory). Having been acquitted by one U.S. court (the court-martial) could he then by tried for the same crime by another U.S. court (the Philippine courts acting as Territorial Courts)? Was this not double jeopardy?

In developing an answer, the Court raised the curious legal animal called ‘sovereignty’ – a citizen, for example, lives actually under two sovereignties simultaneously: the State and the Federal: each has its own laws and its own courts. So, it smiled, to be prosecuted by one ‘sovereign’ for an act against its law, does not preclude prosecution for the same crime by the other ‘sovereign’. It’s only double jeopardy, thus, if both courts derive their authority from the same sovereign. So Grafton cannot be tried by two courts deriving their authority from the same ‘sovereign’, i.e. the Federal government. Grafton is released; the Court injects yet another complicating variable into the on-going chemical reaction. The ‘dual sovereign’ doctrine had been deployed earlier, but only in matters between the Federal law and the laws of a State.

Now the possibility is opened that there may also now be a sub-division of sovereignty: between military and civilian criminal law, between Article I and Article III courts, which puts a whole new twist on things.

In direct contradiction to the JAGs’ purring, we have to note the curious events of early 1919. In January of that year, within two months of the signing of the Armistice, numerous and vociferous complaints about the military justice system were raised by returning veterans and their families, and reached the floor (and the Record) of the Senate, and were given notable publicity. On March 1, the Secretary of War, Newton D. Baker, sent a letter – quickly and officially made public – to the chief JAG of the Army, Major General Crowder, piously expressing his deep concern over the “harsh criticisms” leveled at the system. He refuses to believe that “justice is not done to-day under the military law or has not been done during the war period”. The conditions of “harsh and illegal treatment” asserted by the complaints, he is sure, do not exist and never have existed. But the public must be informed of the true state of things, and would the General care to address matters publicly? Yes, members of the General’s staff had been made to go before a Senate Committee, but their fine answers were voluminous and technical, and it would be a while before they could be printed up. The vets, their families, and the public must not be left to the illusion that “their men were subjected to a system that did not fully deserve the terms ‘law’ and ‘justice’”. In a shrewd (and surprisingly modern) bit of spinning-before-the-fact, the Secretary asserts his confidence that the public will be reassured by the General’s response.

Amazingly, given the military system, the JAG had a 64-page reply ready a little over a week later, on March 10. From reading the now-familiar military script that nothing is or was wrong and changes are being made, we can get a reverse-glimpse of complaints about the system being arbitrary and excessive. It isn’t, said the JAG, and anyway it was war.

Jumping ahead for a moment, we now know that within months of the end of World War 2, ex-Great War Army artillery Captain, Harry S. Truman, would be bombarded by similar complaints from returning veterans that touched so deep a nerve that in the Fall of 1945 he assigned Jimmy Doolittle to head up a commission, and that inquiry into military justice was completed and its report on Truman’s desk by the Spring of 1946.

In “Kahn v. Anderson” (1921) the Court again asserted that Congress has the power to dispense with the provision of Fifth Amendment guarantees, and it adverts to numerous decisions of the Court upholding that (admittedly not altogether obvious) power. It also disposed of the interesting argument that since the U.S. was at peace, the military did not have the jurisdiction to try for murder. The Court simply noted, in an unusual glance at current events, that “complete peace, in the legal sense, had not come to pass by the effect of the Armistice”. Which was true enough. It went on to quote the Court’s hopeful assertion in “Reed” that “the Constitutionality of the Acts of Congress [in the matter of military justice] is no longer open to question in this Court”.

In “Ex Rel Creary v. Weeks” (1922) the Court again asserted that “the power given to Congress by the Constitution to raise and equip armies and to make regulations for the government of the land and naval forces of the country (article 1, 8) is as plenary and specific as that given for the organization and conduct of civil affairs”, which raises – at the very least – the question as to the very small amount of text, none of it quite that clear, devoted to the military matters in the Constitution itself. The Court immediately goes on to observe that “military tribunals are as necessary to secure subordination and discipline in the army as courts are to maintain law and order in civil life” and that “the experience of our government … proves that a much more expeditious procedure is necessary in military than is thought tolerable in civil affairs”. The shrewd understatement hiding beneath the mild “tolerable” belittles the long-standing concern about the expansion and conduct of military influence – and military justice – into the life of the Republic.

In “U.S. v. Lanza” (1922) the Court did not address military justice, but it is referenced in other, subsequent Court Opinions because of the ‘dual sovereignty’ question. The defendants insisted that to be prosecuted for rum-running under both the State laws of Washington and the National Prohibition Act was double-jeopardy. Again, although at greater length, the Court supports the dual-sovereignty: “We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory”. And “each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.” Which is true enough, as far as it goes. But while the abstraction can sustain the theory, when it comes to actual human beings, the theory leads to one person being tried by the government police power twice for the same thing. That there are two different ‘governments’ can appear not entirely in touch with reality.

In 1946, as noted above, Harry Truman saw his chance to reform a system that had upset him even during his own military service. He ordered the military to fix things, and specifically to get rid of the problem of ‘command influence’, the tendency of commanders to – visibly or otherwise – place their thumb on the court-martial process to ensure the Outcome and the Result they want. No flies on Harry – he put his finger on precisely the problem that exists at the core of the whole thing: a military does everything it can to ensure its desired Outcome; no incorporeal abstractions (among which we might include Ideals and Virtue) are allowed to interfere with the push to Victory, and the direction of the higher commanders is essential to that process. A fully adversarial process, with its much larger uncertainty as to outcome, simply will not do. Nor, for a moment, will it be tolerated. Thus, JAGs purring that there is no ‘command influence’ or that the problem has been solved are not being truthful. If there’s no command influence then we’re not talking about any military on this planet, and to say that the problem is solved is to say that Navy ships can now be sent on the high seas without getting wet. Ain’t gonna happen.

The subsequent five years are instructive. The Pentagon was busy with other things, it was the Cold War, and the JAGs didn’t get around to anything before the election of ’48, which we might reasonably infer they hoped would make Truman ‘go away’. Alas. He took the oath again and inquired as to how his orders were being carried out. The Pentagon came up with the Uniform Code of Military Justice (UCMJ), claiming that they had wanted it all along and that it perfectly met the needs of the military and simultaneously protected to a nicety the rights of the service-member. It was passed by Congress in 1950. Truman signed it with a clearly glum look on his face (he didn’t like being crossed) and then said to a reporter that it still didn’t solve the question of ‘command influence’, which is the equivalent of saying that the ship may look good but has no keel.

One might be forgiven for suspecting that in their desperation after the ’48 election, they cast about for a solution and came up with … Stalin’s from the 1930s: if you own all the players in a court system, then you can make all the guarantees you need to, toss in all the comforting props folks are used to, and still control – almost without any traceable effort at all – your Outcome. Thus the UCMJ: all the familiar players and props are there (just Perry Mason in a uniform is all it is, they purr) and the guarantees are numerous enough to fill a truck. The JAGs brag about it even to this day. But in light of the Baker-Crowder correspondence, it’s also possible that Stalin got it from the JAGs.

It might then come as a surprise to see how much trouble it stirred up back at the Court, almost immediately.

In “U.S. ex rel. Toth v.Quarles” (1955) the Court was called back to this now souped-up thing. A serviceman, honorably discharged, was later alleged to have killed a civilian while on duty in Korea. The Air Force sent MPs to his hometown of Pittsburgh, arrested him, and quickly took him back to Korea on a military plane. (Does this sound sorta familiar?) All of this was done in conformity with a quiet little provision that gave the military jurisdiction over anybody for a crime they were alleged to have committed in the service, even if they had completed their service and gone back to civilian life. Toth’s sister took the matter to the Supreme Court.

The Court – stoutly – noted that this was “an important constitutional question”: does the military have court-martial power over persons who have no connection to it? Over ‘civilians’ as so many of us are known? Hugo Black delivered the Opinion.

The UCMJ, he said, “cannot be sustained on the constitutional power of Congress 'To raise and support Armies', 'To declare war', or 'To punish offenses against the Law of Nations'". “The Government’s contention is that the Act (i.e. of 1950, the UCMJ) is a valid exercise of the power granted to Congress”. “This Court has held”, he responds, “that the Article I clause just quoted authorizes Congress to subject persons actually in the armed services to trial by court-martial for military and naval offenses” [and thus not for every crime in the criminal code].

Then he goes on to observe that “an expansion of the court-martial jurisdiction like that in the 1950 Act necessarily encroaches on the jurisdiction of federal courts set up under Article III of the Constitution where persons on trial are surrounded with more constitutional safeguards than in military tribunals”. He expands upon that thought by noting that the Founders not only insisted upon independent judges, but on a grand jury indictment, in order to “protect defendants against oppressive governmental practices”.

And then “We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty, or property. It is the primary business of navies and armies to be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to the army’s primary fighting function.” Military courts can’t equal the ability of civilian courts in determining guilt or innocence, and rendering justice is not what armies are primarily set up for [yes, the services hire lawyers to be JAGs, but those folks instantly become officers in the hierarchy and – if they plan on staying – have to be ‘team players’; if you're the accused, and you're a tad leery of your military lawyer, you are generously allowed to hire your own lawyer ... ummm ... at your own expense - on a serviceman's pay! ].

But Black tops even that: “And conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, it still remains true that military tribunals have not been and probably never can be constituted in such a way that they can have the same kind of qualifications that the Constitution deemed essential to fair trials of civilians in federal courts.” In a stroke, he disposes of the military charade – ever unmentioned and unmentionable – that you can keep command control and still administer Constitutionally adequate justice. Of course, he leaves unspoken but clearly implicit the question: is this thing actually going to be able to provide justice for servicemembers? To which, so far, the only response seems to be that encapsulated wonderfully in a scene from “The Simpsons”: being taken away by government agents Homer cries “Is this legal”, to which, after a moment’s silence, an agent replies “It’s legal enough”. But is that enough?

Nor does Justice Black fail to underline just how deep-seated and intractable this problem is: “But from the very nature of things, courts have more independence in passing on the life and liberty of people than do military tribunals”.

Nor does he fail to dispose of a favorite JAG line, used even recently, to the effect that since the military is a special community, then it’s better for everyone, including the accused, that a panel of military folks be the jury. “… the premise underlying the constitutional method for determining guilt or innocence in federal courts is that laymen are better than specialists to perform this task. The idea is inherent in the institution of trial by jury.”

And as to another old JAG ploy, that the system is needed to preserve good order and discipline, he nails it down with “Consequently considerations of discipline provide no excuse for new expansion of court-martial jurisdiction at the expense of the normal, constitutionally preferable system of trial by jury.”

And of another favorite ploy, that it’s no big change and no big deal: “… there is no justification for treating the Act as a mere minor increase of congressional power to expand military jurisdiction. It is a great change, both actually and potentially”. And we might fast-forward to the past four years.

“There are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution.” One wonders, again, not only about what has taken place since then, but also about just how adequate and reliable this system is even to servicemembers.

Yet even he, quoting the Fifth Amendment accurately in a footnote, does not go to the textual heart of the matter, confining himself – efficaciously enough – to the declaration that the Fifth Amendment does not of itself grant court-martial authority to Congress, another balloon that had been sent up by the government’s attorneys.

In all of their Manuals and press releases, the JAGs never seem to get around to “Toth”.

In his Dissent, Justice Reed offers that “courts-martial are deeply rooted in history” and that “war is a grim business, requiring sacrifice”. Both generally quite true, but not quite fine enough as points to bear on the massive Constitutional issues. He then figures that “The power to regulate the armed forces must have been granted to Congress so that it would have the authority over its armed forces that other nations have long exercised, subject only to the limitations of the Constitution.” But those limitations are precisely the nub of the matter, and the Constitution most largely distinguished – separated – us from those “other nations” of the day; none of those other nations had citizens so fully protected by a carefully constructed Constitution.

He goes on to dismiss this narrowing of military authority simply because “the accused has better opportunities to escape conviction in a civil court”; to Mr. Reed, it comes down to that: an accused in the military system should not be pitied simply because he has worse chance of “escaping conviction” than in a civil court. Mr. Reed does not mention that such an accused also stands a supremely better chance of being convicted regardless of what he did or did not do.

He quotes “Johnson v. Sayre” for his treatment of the Fifth Amendment, shrewdly not arguing or even noting the ‘comma question’ but simply asserting – accurately enough, as far as it goes – that “this Court has held, and all the history of our courts-martial shows, that such phrase has reference only to “cases arising … in the militia”. The system has, in some ways, stayed around look enough to constitute a ‘fact on the ground’ in its own right.

“The military”, he believes, “is in a position to give its personnel a fair trial”. Only on the surface of things, only in appearance. The military can no more legitimately promise to give a fair trial than the Navy can legitimately promise that its sailors won’t get wet.

“Reid v. Covert” (1957) had to do with the jurisdiction of the courts-martial in capital cases against military dependents overseas in time of peace.

Justice Black observed that “these cases raise basic constitutional issues of the utmost concern. They call into question the role of the military under our system of government. They involve the power of Congress to expose civilians to trial by military tribunals, under military regulations and procedures, for offenses against the United States thereby depriving them of trial in civilian courts, under civilian laws and procedures and with all the safeguards of the Bill of Rights”. He also observed that this was happening “for the first time in our history”, an oblique acknowledgement of the effort of the military justice system to expand, once having been given its new trimmings in 1950.

“At the beginning we reject the idea that when the United States acts against its citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source.” There are times when it is positively refreshing to read these Opinions just to see how matters were framed back then, the depth and seriousness with which they were treated, and how in some significant ways things have now changed.

Stunningly, we read through the Court’s comments and realize what the Government must have been trying to put forward: “Moreover, in view of our heritage and the history of the adoption of the Constitution and the Bill of Rights, it seems peculiarly anomalous to say that trial before a civilian judge and by an independent jury picked from the common citizenry is not a fundamental right.” Black goes on to say that “Trial by jury in a court of law and in accordance with traditional modes of procedure after an indictment by grand jury has served and remains one of our most vital barriers to governmental arbitrariness. These elemental procedural safeguards were embedded in our Constitution to secure their inviolateness and sanctity against the passing demands of expediency and convenience.” In light of what has happened over the past decades, as well as since 9-11, in this country, we are moved to consider our present situation carefully; he notes that those are “safeguards which cannot be given in a military trial”.

He notes in passing that “it has been held” that Congress’s assigned right to make rules for the armed forces creates an exception to civilian-trial requirements as provided by the Constitution and “permits Congress to authorize military trial of members of the armed services without all the safeguards given an accused by Article III and the Bill of Rights.” What he neglects is that the Fifth only allowed that power in time of war. But by 1957 Sputnik is up and there is a ‘bomber gap’, so it was said.

“The tradition of keeping the military subordinate to civilian authority may not be so strong in the minds of this generation as it was in the minds of those who wrote the Constitution.” And he was speaking of the adults of half a century ago. And today? Especially since the militarization of our society and our very minds is being insinuated slowly and there are so many distractions these days.

“The Founders envisioned the army as a necessary institution but one dangerous to liberty if not confined within essential bounds. Their fears were rooted in history.” The hard work of keeping the military confined to its proper sphere is even harder today, when not only the ‘military-industrial complex’ noted by Eisenhower in 1961 but the awful bargain struck between the Advocacies and the government and the Fundamentalists, has brought the police power of the State, itself already militarized, into the most intimate precincts of hearth and home.

He imagines that the Founding generation, in their adoption of the Constitution, “embodied their profound fear and distrust of military power … Perhaps they were aware that memories fade and hoped that in this way they could keep the people of this Nation from having to fight again and again the same old battles for individual freedom.” It appears that we do indeed have to fight that same old battle again, and very much closer to home than ever before in our national history.

The government had also tried to argue that the concept of “in the field”, the ancient justification for the harshness and arbitrariness of military justice (the navy already had the harshness of simply keeping the ship afloat and mission-ready, even when there was no fighting to be done) should be expanded to include dependents. In the Cold War, it could be plausibly be proposed that since nuclear missiles could reach the U.S. in 30 minutes, then the military was always under alert and danger was always (possibly) imminent. So that therefore life itself had become “in the field” no matter who or where you were.

Then, in a reality check to the government arguments that since the UCMJ was passed, all its prior problems had been fixed, it is stated flatly: “We recognize that a number of improvements have been made in military justice recently by engrafting more and more of the methods of the civilian courts onto courts-martial. In large part these ameliorations stem from the reaction of civilians who were inducted during the two World Wars, to their experience with military justice. Notwithstanding the recent reforms, military trial does not give an accused the same protection which exists in civilian courts.” Black, something of a fearless vampire-killer, simply won’t be tricked into accepting the cutesy, purring appearances of what is essentially a monster. And his use of the ‘engrafting’ image clearly implies his sense that the whole system has been cobbled together ala Frankenstein. Military justice “emphasizes the iron hand of discipline more than it does the even scales of justice”. A perfect justice system for a People who needed to do less gutsy thinking and more happy obedience – which is what we’re well on our way toward today.

Still swinging, Black then turns on another Grima Wormtongue-like government proposition: “It is urged that the expansion of military jurisdiction over civilians claimed here is only slight and that the practical necessity for it is very great”. And does that sound kinda familiar? “The attitude appears to be that a slight encroachment on the bill of Rights and other safeguards in the Constitution need cause little concern”. But “slight encroachments create new boundaries from which legions of power can seek new territory to capture”; we think of all the dubious legislation that has been touted to us as merely “the next logical step”. “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure”. It’s almost a form of surfing, waiting on your board until a useful wave comes along, and suddenly Kowabunga! A classic example is the military’s insinuation of itself into the 1996 Megan’s Law for sex offender registries: all that law’s ill-considered strictures are followed by a curious list of courts upon whose convictions the burden of registration will lie: appended to each list, again and again, is the phrase “or courtmartial”. Quietly, without much fuss, the public mind comes to assume that the military justice system is simply one more criminal justice system, and maybe even a better one for fighting evil than the slow and pokey and creaky and prissy civilian justice systems. The JAGs got a TV show out of it, not long afterward.

In Footnote 67 of the case, is this notation: “The chief legal officers of the armed services have already (1957) recommended to Congress that certain provisions of the UCMJ which were designed to provide protection to an accused should be repealed or limited in the interest of military order and efficiency.” So much for our purring JAGs. Quick and efficient, cheap so as not to waste money and time better spent. Accuracy not a primary objective. Justice not required. One can only imagine what such an attitude, then blended with the embrace of some popular hysteria, can wreak on a court-martial’s integrity.

But even Justice Frankfurter, in his Concurrence, mis-reads the Fifth Amendment, focusing on the phrase “except in cases arising in the land and naval forces”. Yet he, at least, gives us a clue as to whether he actually realizes what he’s doing. A few sentences later he speaks rather vividly of the need to “avoid a strangling literalness in construing an instrument [i.e. the Constitution/Bill of Rights] that is not an enumeration of static rules, but the living framework of government designed for an undefined future”. It appears that almost from the first decades of the 19th century there was a consensus among government-types that the strictures clearly placed in the Fifth Amendment were simply too great to be borne. A conclusion, doubtless, that the military of the time did nothing to prevent.

I’ll follow up with a concluding Post on this subject shortly.

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