Thursday, February 08, 2007

IT ONLY LOOKS LEVEL

The ‘judge’ in the Watada case has declared a mistrial. Scott Galindez and Geoffrey Millard report on Truthout (www.truthout.org/docs_2006/020707Z.shtml) that this constitutes “a stunning defeat for military prosecutors”.

Not hardly. Their exuberance – bless them – rests on the assumption that the ‘judge’ and the prosecutors are different agents, not therefore ‘working for the same side’; if that’s accurate then the ‘judge’ has freely and independently made a judgment ‘against’ the prosecutors. Military justice being what it is, however, that scenario is not possible.

I tend to think that the ‘judge’ realized – or was told to realize – that the whole thing was going south and had to be stopped before the court-martial itself began to resemble the Iraq debacle that sparked it.

Things reached this pass partly because the prosecutors pigged things up; but then, in a rigged system (and don’t think the JAGs don’t know it from the get-go) you don’t need brains to be a ‘prosecutor’; you’re a shoo-in to win no matter what. So they tend not only to be not so sharp, but kinda cocky and in-your-face. And most of the time that’s enough to get them along quite nicely, thank you. Let's not forget: the official JAG advertisement that caught their eye in the law school journal was of a set of handcuffs - and that turned them on.

BUT BUT BUT this time the media were there. It should raise the reddest of flags that the military justice system does not work smoothly when independent agents (the media, or some of them anyway) are watching. Like visiting Chinese Communist operas, voices start to wobble and strain when the performers suddenly realize that the audience in this city isn’t applauding lustily at the appointed five-minute intervals like they do in Beijing. Like small-town Southron justice, the judge ain’t so cocky and the deputies don’t chaw when they suddenly realize that an Associate Justice of the Supreme Court is sitting in the back (a plot from a ‘30s or early ‘40s Hollywood flick; it may not work today – the deputies might just keep chawin’ secure in the knowledge that the Court thinks they’re doin’ a heckuvva job). In the Watada matter, it is not the Supreme Court but the Press that is watching with a gimlet eye. The ‘success’ of the military smoke-and-mirrors show precisely requires that it not be viewed with a gimlet eye.

Iraq was also once classed as a smoke-and-mirror where everything would work right if you just kept your gimlet eye closed and everything would be on the level if you just held your head at the right angle. But now ‘reality’ has proven to be alive and well; its rumored death was greatly exaggerated. And it is awesome and awefull in its implacable power. We are become like Japan in the Godzilla movies: we have awakened a monster and pissed it off. Or, in the somber assessment of Admiral Yammamoto after Pearl Harbor: “I fear that all we have done is to awaken a sleeping giant … and fill it with a terrible resolve.” Our national existence is going to become the Ur-reality show from hell. The usual viewership will no doubt be unequipped to keep up with it.

So this ‘judge’ simply provided a handy smokescreen behind which the battered Army forces could effect their retreat and stave off catastrophe. He took a closer look at the documents, a noble undertaking which he had until now studiously avoided. And suddenly there is grounds for backing away; a sort of military version of “Let’s Call The Whole Thing Off”. Potayto was actually Potahto and thus the mistrial is declared loudly to muffle the clanking of the retreating military machinery.

The defense perhaps figured that this was in the best interests of its client, and that may very well be. The issue may never again be joined, the military may bargain quietly but vigorously now for an ‘out of court settlement’ or the face-saving equivalent thereof. Still, having now determined the defense’s strengths (among which is The Press, and I assign that title with respect) the boyos may simply have retreated to consider how to mount a successful assault against some point other than the defense’s strengths. My guess is that the Army will try to do things quietly. Vampires aren’t known for persisting in public, daylight operations. Indeed, they get to be old and strong precisely by not going the celebrity and publicity route; they let their human roadies do that.

And if I might offer one suggestion: will the esteemed (not ironic and not sarcastic) members of the Fourth Estate puhleeze stop framing military-justice in terms of its similarities to real Constitutional process? To say “the military panel” is “similar to a civilian jury” is to say that Al Capone is ‘the noted Chicago businessman’. The similarity is so insignificant next to the actual differences that your description almost rises to the level of misdirection. A civilian jury (however much it may nowadays have been stampeded by sensational pretrial coverage) is and is designed to be a random gathering of independent citizens with no vested interest in anything except – it is piously to be hoped – the Truth of the particular case at hand. A panel of military officers is the equivalent of getting a bunch of eager-to-be-kept football players together at a rubber-stamp session the coach has called to back-up his dismissal of another player. The two groups – jury and panel – are clearly, it is to be hoped, dissimilar.

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