Wednesday, January 03, 2007


Jason Leopold reports that the Army’s court-martial of 1st. Lt Ehren Watada has entered its preliminary stages ( The trials to come begin to arrive.

The military justice system has been discussed elsewhere on this site. We can sum up its limitations briefly: the military ethos is in its very essence incompatible with the adversarial process of rendering justice that is the hallmark of Western law. An independent judiciary and trial by one’s peers is not simply enshrined in the Constitution but is required by it. The command’s absolute control of any military operation – and that, inescapably, is what any military legal proceedings are – cannot allow the possibility of an outcome adverse to that command, nor will any member of the military team – and all significant participants in such a legal proceeding are, inescapably, part of that team – can long retain their position in the military if they fail to do all they can to ensure the desired Outcome. The Integrity of the Process, so vital to Constitutional justice, is replaced in the military system by the efficiency through which the desired outcome is loyally achieved by the military team.

There are very large and fundamental questions that remain unresolved in this Rube-Goldberg legal system, cobbled together precisely to avoid addressing its grave deficiencies: Granted that the military can court-martial its members for military offenses, can it do so outside of a time of war or national emergency? Granted that Congress is given wide latitude in the Constitution to provide for defense, is even Congress granted the right to suspend a citizen’s Constitutionally guaranteed rights? Can Congress require citizens to yield those rights, as would be the case for a draftee? Granted that Congress can has the power to declare as criminal any acts that it sees fit, can Congress also erect its own court system, one that admittedly is permitted to provide substantively fewer Constitutional protections to the accused, to try those acts? Can even Congress authorize such ‘courts’ to prosecute the entire civil criminal code as opposed to only military offenses? Can the results of those legal proceedings legitimately be called ‘criminal convictions’?

While the nation’s courts, including its highest Court, have tried to stitch some sort of covering for the thing, they have never been able to resolve these questions. To say they have resolved them satisfactorily is simply to say that the necessary victims were insufficiently numerous or influential and were expendable and that the nation was content to let the military be the military within its own preserve.

That preserve has expanded now, and continues to expand even more hungrily in the aftermath of 9-11. It is no longer a smallish, well-defined preserve within the larger American culture. Chris Hedges, in his new book ‘American Fascists: The Christian right and the war on America” and in 12/31/06 post over on Truthdig, notes that Fundamentalists now comprise 50% of the military chaplaincies, and while they go after almost every institution in contemporary society they always play up to the law enforcement and military communities. The military justice system is a key nexus of these deeply un-American developments. It is infiltrating the legal systems of American society, it has flowed in quietly but quickly to fill the vacuum created by the many distractions to which The People have been subjected over the decades since the National Security State first saw the light after World War Two. In the weakness induced by that distracted condition, The People has not been able to take decisive protective action. Not yet, at least.

It’s important to note that what we can expect from any proceedings is that the military will not suffer an unanticipated outcome. Whatever the outcome may be, it will be the one that the military has decided upon and has prepared for.

Whether that is for or against 1st. Lt. Watada is another question altogether. A dozen or so years ago a Sergeant Major of the Army was charged with sexual harassment, which to the average military mortal who is not a general would be the knell of professional death and quite possibly – to the extent it can Constitutionally be so called – ‘criminal conviction’. But then the Sergeant Major’s defense counsel – and such an exalted enlisted member could afford, and knew instantly that he needed, serious and expensive counsel – let it be known that the Sergeant Major had a little list, specifically of current and former general officers whose sexual activities were even further beyond the pale than his own. Suddenly, he received a slap on the wrist and retired peacefully, and the list was never heard from again. Such is military justice.

While it might be suggested that things like that happen in civilian justice with some frequency, it has always been the position of the military that their system is so much ‘stricter’ because the members are held to a higher standard. This is true, unless the accused is in possession of a big enough little list; or unless the potentially accused are themselves general officers – if it is unthinkable that a general would lose a case to a private, it is even more unthinkable that a general be put through a court-martial. Such is the military.

It is also a sign of the times that the Army prosecutor seeking to subpoena a civilian press organization, Truthout, advises them ominously in a memo that he is conducting “an ongoing criminal investigation”. The “ongoing” is theatrical, designed to impress upon civilians and potential viewers that what is going on here has the authority of some of the most popular TV shows.

The “criminal” is cagier. For quite some time the military played down the “criminal” aspect of its mandate, since while technically accurate and – so far – legal, there are substantive vulnerabilities in exposing to public examination the justification of calling military justice true criminal process. And for a long time in this country, citizens expecting to see some form of Perry Mason would have been disconcerted to see what actually goes on in military proceedings. But things have reached the point nowadays (see elsewhere on this site) that the civilian criminal justice system has actually picked up many of the military system’s worst habits. So by 1995 the military figured that the surf was high enough to grab more territory, and overnight everything connected with the system suddenly advertised itself as “criminal”: thus the Naval Investigative Service suddenly rebadged itself as the Naval Criminal Investigative Service and the Court of Appeals became the Court of Criminal Appeals … and so on all around the shop. It was a marvelous double-entendre, but irony is lost on the military mind.

But 1st Lt. Watada has put himself beyond many of the foregoing problems. His action clearly falls into the category of a genuinely military offense. If ever there was a reason for the military to be in the courting business, it would be for such charges as Captain Watada faces.

Additionally, he faces charges under one of the so-called ‘general articles’ (133 and 134) of the Uniform Code of Military Justice: Conduct Unbecoming an Officer. These cuties are separate charges, but if he is found guilty of the main charge, then he can also be found guilty of the violations of the general article(s) and, consequently, face even more prison time. This is one of the Good and Great Mysteries of the military system that, when deployed, can jack up an accused’s potential prison time to the point where only the most resolute or irrational gambler would want to risk a trial – hence the many plea-bargains that are still toted up as ‘convictions’ when it comes to ‘conviction rates’ and JAG resume time.

Watada, it is fair to say, qualified as ‘resolute’. And so he deserves to be seen.

But while he has effectively done an end-run around the many foregoing vulnerabilities of the military justice system, which might have protected him or staved off ‘conviction’, he has in his pursuit of integrity posed the Empire a far greater problem: if he claims to be disobeying an illegal order – which it is not only his right but his sworn obligation to do – then the legality of the order he refused to obey will have to be examined; the legality of the war itself becomes – at the very least – material to the case. To convict him the military will have to establish that the Iraq war was ‘legal’ – or at least ‘legal enough’ so that no mere 1st Lt. could take it upon himself to doubt it.

Under ordinary circumstances such fine points of Law and Justice do not bother the military; they are overrun as an anthill would be overrun by a rampaging elephant. But there will be a great deal of public attention, and such exposure has historically given even the darkest governmental malefactors great pause. Perhaps the military is banking on the fact that the gummint’s roadies in the press and right-wing blogosphere and reliable cheerleaders like the American Legion will be able to raise sufficient patriotic dust so that the actual questions at issue in the case will be overrun by a surge of patrioteering. It has worked often enough in the recent past.

Against such blandishments The People are advised to remain resolutely fixed on the actual issues at hand. No matter how distracting the vampire tries to become as it is pressed into a corner with the sun getting ready to rise, its whiney or blustery manipulations must be resisted and the task driven home to fulfillment. We will be free in no other way.

Tim Golden of “The New York Times” has a substantive article – “For Guantanamo Review Boards, Limits Abound” – about the military boards conducting review hearings at Guantanamo ( This subject is not directly related to Captain Watada’s court-martial proceedings. But it gives an idea of what happens to legal proceedings in the military setting.

They are ‘administrative proceedings’, so they “were never intended to replicate judicial standards of fairness”. Yet the military claims that prisoners have a “viable opportunity to rebut the government’s evidence”. Just how it’s “viable” is not explained’. You’d figure that if they’d been gotten to Guantanamo, then they’d need a lot more than “viable”, they’d need ‘robust’ or even ‘massive’. But in best JAG fashion, the game is represented as being an expression of the military’s tender and abiding interest in meeting the needs of the person whom it has – if not kidnapped, then imprisoned. “At the end of the day”, intones the Navy officer in command of all the review panels, “it’s about giving the detainee flexibility and freedom to present his case”. All the right words, piously delivered. And by a professional: the officer was a pilot, and now, presumably, he has a god’s-eye view of life. Or godlike insight into the doings of earthbound mortals.

Cutely, it is pointed out that these panels are more rigorous than the battlefield tribunals required by the Geneva Conventions. We are not supposed to be informed enough or impolite enough to note that the Conventions require such battlefield inquiries in order to establish the status of uniformed combatants serving in regular armies, which is a more or less direct and uncomplicated task. What these Guantanamo panels are to do is to examine the past of the detainee – in no case a serving member of a military serving a nation with whom we are in a declared war – in order to determine if at any time he had in any way participated in a “global terrorist network”. On the basis of that he is to be kept in a cell for months or years. And this is “administrative”? Line officers with no legal experience, perhaps with no ground combat experience or experience of close-in relations in foreign countries, are to be making these type of decisions and wielding this type of power? Yet they claim to have a standard of evidence (very low) and a “rebuttable presumption of genuineness and accuracy that attaches to government records” – all rather legal sounding.

So are these panels ‘administrative’ or are they some sort of actual justicial proceeding? The same question, in a hardly surprising coincidence, can be raised about military justice itself, and have been over the course of two hundred years. So the bhoys have a lot of experience in trying to put a nice face on things.

Nor are any actual legal professionals allowed to interfere. Civilian counsel are excluded outright; military lawyers are shrewdly not permitted to participate because the panels are so rigged that for any lawyer to come near them as counsel would create professional ethical risks. The JAGs are not complaining. Nor are they trying to help stop these things.

While it can certainly be said that the military is only ‘following orders’ and that Congress has passed the legislation enabling this sort of chicanery, yet such ‘orders’ would be rather congenial to the military ethos. They want to keep people locked up, they have to put some sort of fig-leaf over it because it cannot be completely hidden from the public (any longer), and ‘legal proceedings’ – actually the appearance of them – do the trick nicely. As does the military justice system itself.

The military prosecutor in the Watada case may try to go after Captain Watada simply for advising other service-members that they too might choose to disobey, or might be obliged to disobey, the orders to deploy. This might be possible in the realm of the technicalities of the process. And thus the question of the war’s legality might possibly be avoided. But it’s iffy. Captain Watada probably has independent civilian counsel competent to operate in the military system (the average defense lawyer ‘off the street’ would not be familiar with all of the military system’s ins and outs).

Far more cogently, the media is going to be present, and it appears that at least some of the media can be relied upon to keep an eagle eye on the proceedings, and to have done enough homework to follow the ball. This has happened before; an Army officer was court-martialed in Haiti a dozen or so years ago. The officer had apparently seen that some local civilians under Army control were not being treated according to the standards that had just been enunciated publicly by the President. His formal and persistent reports that those Presidentially-proclaimed standards were being violated resulted in ... his court-martial. “The New Republic” – in a former incarnation – called the proceedings “a kangaroo court”. But it was the euphoria of the mid-‘90s, it was a military thing in a far-off country involving a people of whom we knew little … and anyway we had meant well in invading the place.

There is real ground for hope that in these days this court-martial will attract the seriousness of scrutiny that it and We deserve.

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