Tuesday, January 16, 2007


Just when you think it’s safe to go back and do something else … but when you’re dealing with the JAGs and the military justice system, there really isn’t such a time and you are making a huge mistake if you think that the thing ever sleeps.

Marjorie Cohn reports “Pentagon Attacks Lawyers of Guantanamo Detainees” (www.alternet.org.story/46755/).

Charles D. Stimson, Esq., deputy assistant secretary of defense for detainee affairs, displayed for the media a list of firms whose lawyers were doing pro-bono work for Guantanamo detainees and then invited corporate bosses who employ law firms to take names (and kick ass, as the military has it) while simultaneously warning senior Partners of those law firms to re-think whether they want to “represent terrorists” rather than lose big retainers from the CEOs.

Charming. The last time a major Western government was this frank and candid about its willingness to browbeat attorneys was probably Germany in the mid-‘30s. At that time a bunch who considered themselves the saviors of their people and their nation, and thus authorized to follow no laws but that of their own enlightened gut, had taken over the government and were in the process of restoring and transforming their nation and their society. Whether this sounds to you more like the Fundamentalists or the Advocacies is, in the final analysis, a secondary question. In our modern American reality, the ethos of the Republic is currently bethumped by both. It is an interesting question just how much more of a beating the great ship of the Republic can take. Or how much more We The People will allow it to take.

Lawyer Stimson’s outbreak is one of those flashes of lightning in a dark stormy night that suddenly pierces the veil and shows you what the hell is really out there: a monstrous and lavishly equipped orc army bent upon the destruction of what has been so laboriously built, or – to continue the nautical metaphor – waves half-a-hundred feet tall extending to the horizon. He is no rogue; he may be a cocky blockhead who went and gave the game away, but he is no rogue, no wild individual bad-guy. After all, look how high he’s gotten already.

He’s also an ex-JAG. Well ain’t that a coincidence? After everything that’s been noted (see “Bishops Bomb”, “Warrior Professionals”, and both Parts of “Military Justice Is No Music”) on this site we see now a working example of just what this system produces – what corrupting effects it has even on those who administer it.

And he was a Navy JAG. Far more than the other Services, the Navy’s concept of command has always been more concentrated and intense, more ‘unitary’, than that of either the Army or the Air Force. This flows from the ancient necessities of command-at-sea far from any US courts: not only to ensure efficient performance in battle, but simply to keep the ship afloat (even in peacetime when there was no prospect of a battle). Consequently, while all the Services are bound – the term is purely metaphorical as hereto applied – by the Uniform Code of Military Justice, the Navy’s own ethos informs how it wields the awefull power granted to it. What the Boss wants, the Boss gets – is pretty much the Navy philosophy.

That modern sensibilities require a certain amount of dress-up and kabuki before the retributive festivities might actually begin is simply an indication of how unfit ‘civilian’ justice is to govern manly men. Far better is naval justice where “High Noon” can be staged without even the exertion of Gary Cooper having to face the ‘bad guys’ and out-draw or out-think them. In the Navy’s version of that scenario, Cooper outranks them and simply morphs into a slightly better-shaven version of Judge Roy Bean. This, to the JAG-ish mind, is American history and tradition in action. If no adult should feel completely comfortable giving young people very powerful guns, no citizen should feel comfortable giving JAGs the power of The People to administer Justice. But all of that has been done, and more.

It cannot be a surprise that both the Advocacies of the Left and the Fundamentalists of the Right want to get control of this military justice system. Both of them being revolutionary and neither of them tolerant of Democracy’s sustained and patient climb toward peace and maturity, the military system provides a far more ‘efficient’ weapon for the destruction of all of those obstacles that stand between America and the realization of the Final Outcome (said Outcome being a utopia of either the Left or the Right, but either way collapsed into the Horizontal dimension of life, into its surfaces, and bereft of the stability of any Vertical, let alone any Beyond, dimensions). O brave new prison! O monstrous Progress! O awesome Revelation! Yadda yadda.

Meanwhile, not far away, two very prestigious ex-JAGs are displaying for us two of the most favored ex-JAG poses. This is pornography that educates. There is a new law that is soon to go into effect: civilians working in areas of ‘contingency operations’ (such as Iraq) will be subject to military justice. Thus, the civilian mercenaries – heavily armed but with little adult supervision – and even Halliburton employees ferrying sand and other rare commodities to the embattled troops – will be subject to court-martial for breaking such law as is still in effect over there. In a style so compatible with the JAGist mentality, this law’s passage was effected by sneaking merely five words into the vast defense-spending bill at the last minute. When the bill passed, the words did, like plague rats hitching a ride on a ship heading to a fresh port of call. Plagues and rats are concepts not unknown to the West, or to Washington City. We do well to remember that.

The first position – if we may – is demonstrated by Sen. Lindsey Graham (R – S.C.), who in the good providence of some god was a JAG, is an ex-Jag, is a high-ranking Reserve JAG, and is a judge in the military appeals court – which is that court where a defendant’s case goes for last possible rescue after the uniformed JAGs have eaten their fill; it is a wonderfully constructed system. Sen. Graham is concerned for the troops: they might become disheartened by seeing “two different standards for people doing the same job”. “This will bring uniformity to the commander’s ability to control the behavior of people representing our country” he stoutly brays. But of course, if the commander could control that behavior, he wouldn’t have to have court-martial authority, would he? And aren’t they all ‘heroes’ over there? Such is what we had been led to believe. And it’s a pity such control cannot be extended over the Commander-in-Chief, who – it must be pointed out to intelligent foreigners – most largely represents our country. And ourselves.

But the patriotic legislator burning with a righteous bosom for the good of the troops is only one pose. The second is the avuncular professional whose benign but comprehensive wisdom is surpassed only by his connections in the Washington power-player club. Thus one Eugene Fidell, Esq., head of the organization known as the National Institute for Military Justice. This organization is to the JAGs what – in the early decades of the 1900s – organizations such as “The Friends of the Italian Opera” were to certain, enterprising Italo-American businessmen.

In a superlative demonstration of knowledge and balance, both tastefully deployed in the service of vice, Lawyer Fidell notes that “The Supreme Court has been quite hostile to trying civilians in a court-martial.”, which is true enough, since the military has from time to time tried to court-martial – among others - wives of servicemen stationed overseas.

He then goes on, equally gravely, but less factually: “On the other hand, the military justice system is more robust and has more protections in it than it did in the 1950s …”. Now this is an odd statement. What does he mean here by ‘robust’? ‘Robust’ usually means strong or healthy, but if so here, than does he mean in terms of its ability to find you guilty or in terms of its integrity? The second part of the sentence is classic Soviet-era baloney because once you own all the players, you can guarantee all the ‘protections’ you want, because it’s your guys up and down the ladder who are going to be calling the shots (preferably in the tones of Lawyer Fidell’s smarmy benevolence). Lawyer Fidell neglects to mention that within a few years of that UCMJ being approved in 1950s, the JAGs were trying to get repealed some of the few ‘protections’ they had written in to guarantee passage. A charming bunch. As all experienced vampires are, whether sipping a Chablis or banging on the furniture to get your attention.

But Fidell, although more suavely than Stimson, also reveals the JAG mindset. Noting the differences of opinion that are bound to rise over Stimson's comments Fidell blurbs "it will be a law professor's dream". As in: law profs love to talk and this'll keep them gabbing away until the cows come home and that's just fine with us JAGs because a) it keeps the law types distracted and b) if they're talking about it [as opposed to - say - trying to get the thing put back in its cage ] then folks will think that military-justice is just a normal piece of the national furniture; law profs talk - JAGs convict! Ah, such manly men. Just as every Western town needed a gunslinger 'marshal' because in 'real life' the law can't be trusted to do the job, so every town nowadays should have a JAG. It has made for some great movie moments; it is hell and gone from American law and from the Constitution and from Democracy.

Meanwhile, his sidekick at the NIMJ, one Kathleen Duignan, who is the Executive Director of this front, is busy Op-Edding the new spin over on U/Pitt's law school site "Jurist" (http://jurist.law.pitt.edu/forum/2006/12/military-commissions-act-of-2006-play.php). Her wing of the assault is to present the JAGs as bethumped professionals who are just caught in the middle: "The Military Commissions Act of 2006 again puts US JAG officers in the awkward position of a military legal process that none of us would like to see our own service members tried under ... ". As Ike would have said: Yah.

The MCA "again" puts ... so we are to imagine that this isn't the first time the poor decent JAGs have been forced to do things that professionally they would rather not do (but have done and have been doing and have been collecting paychecks and emoluments for for decades). We have prosecuted Nazis for this sort of thing.

"None of us" ... ? Who's us? Is she a JAG? Is she a JAG roadie - well, yes. Is she speaking for all citizens? "Our service members" ... ? Who is the us behind this 'our'? Is she one of the team? Or is she one of the citizens?

And then the monstrous burble: "that none of us would like to see our service members tried under". This is a fine example of the JAG strategy: by bewailing (on paper, by a non-JAG roadie, one of the humans who helps the vampires and is rewarded with insects) the new-ish MCA, they manage to a) give themswelves some creds and some deniability as this noxious Commissions-dreck surges forward while b) implying that their core racket - the military ustice system (currently bethumping Lt. Watada) - is a fine and outstanding system and they have no trouble whacking up a 96-plus percent 'conviction' rate of "our service members" and collecting pay, promotion and medals for same. They're banking on the fact that nobody has given their core racket a good tire-kick. See "Military Justice Is No Music", Parts 1 and 2 on this site.

A strategically impressive gambit. But vampires don't live a long time by being honest and open about themselves.

I'm sure that if they were conversant enough in history they might want to adopt for their motto that cute comment of Churchill's when he was fed up with meetings: "less jaw-jaw, and more war-war" (it rhymes in British pronunciation ... and up in Boston). Lawyers jaw, JAGs war ... on 'defendants'. They have to. If a court-martial is a 'team effort' - and it is - then anyone who obstructs its successful completion (such as - say - a defense counsel) is by definition 'not a team player' and that's a career-killer. But, if the defense counsel's job is to provide just enough 'constitutional' window dressing so as to lubricate the success of the court-martial, why then the defense counsel is a valuable member of the team. But if you go and get carried away with it, like the long-unpromoted and now booted Navy JAG, Lcdr. Swift, who successfully stood up for the Gitmo folks, then it's curtains.

The American Bar Association is shocked, shocked. Well, not at the system – that’s been going on for years and years and many of its dues-paying members still make a pretty good penny off it. But at this brassy twerp’s exposure of what the JAGs really think about ‘Justice’ and the folks who try to ensure it in this country. Not even the ABA can sit back and let this howler pass.
Nor the deans of the law schools around the country. They had recently fought and lost a court battle with the JAGs: the JAGs wanted to come onto law school campuses to recruit students (a recent advertisement for budding advocates was a stark, black-and-white grainy photo of a set of hand-cuffs … just so you get the idea of what sort of type they’re looking for and what sort of ethos the new lawyers will be breathing in). The several deans had tried to make the case that since the military didn’t allow gays, then the JAGs can’t be allowed on campus with their hateful anti-gay ethos. It was a classic example of what has happened to Liberals, to the Democrats, to the American university, and – it would seem – to the American Bar: rather than standing tall and inveighing against the system itself and speaking Truth to Power like an Old Testament Prophet, the Deans whined that it would be hateful to upset the gay students. Bless them all, but there are even greater issues at stake here than the feelings of the gay students. And if the Bar cannot or will not speak up, then who will be left?

And we have to ask ourselves how such a fellow as this Stimson got a law degree in the first place? Just what sort of education did he get in law school? The deans appear shocked - and we need that. But when this is all over, if there is a We left, some questions are going to have to be put to them. We know how he got to be a JAG: he really likes hand-cuffs. Most of them do. But how did he get to be a lawyer?

And in case we think this JAG-ish mentality isn't spreading like the plague, we have only to look at today's paper: A U.S. Attorney in Arkansas is being replaced for no clear reason; his replacement, one J. Timothy Griffin, Esq., was a research director for the Republican National Committee, but - the Justice Department assures us - he has "a strong background as a prosecutor in the military". An ex-JAG. And just how much talent, dedication, skill, and integrity does it take to be a successful "prosecutor" in the military system, d'ya think?

The military justice system is no longer some exotic thing kept on a preserve far away. Nor is it a well-tempered and domesticated beast of burden. It is an all-controlling, self-righteous and pitiless system, fundamentally dishonest because of the need to disguise its true operating dynamics, almost completely unaccountable to any authority not already friendly to it Sleeplessly opportunistic, it has shrewdly piggy-backed upon and then co-opted both the Advocacies of the Left and the Fundamentalists of the Right; thus fortified, it continues to seek expansion into the civil sphere – which sphere, the Framers expected, would be the primary defining sphere of this country’s identity and of the nature of its gift and revelation to the peoples of the world.

The dangers of an un-Peopled government are daily becoming more clear. And it is this clarity – not the juvenile ‘high’ that comes from having swept troublesome pieces off the board or the childish comfort of hiding one’s head in a pillow and blocking one’s eyes and ears – toward which We must make Our way.

It is a stern Liberty but a powerful Liberty, that We must seek, and quickly. Those who would destroy it with war, from within even more than from without, are legion. It must be our resolution not to wage ‘war’ upon others, but to master and command ourselves as individual Citizens, thence without delay to re-People this Republic and bring her back to her proper course and trim.

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