Monday, March 05, 2007


Marie Brenner has an article in “Vanity Fair” entitled “Taking on Guantanamo” ( She is a writer-at-large for the magazine.

I suppose that she has to conform closely to the way articles are written in our modern American reality. Rather than get down to the facts and the issues directly, there has to be a ‘story’, and that requires good guys and bad guys, and that the good guys are uncomplicatedly good and – to the extent it can be gotten away with – the bad guys have to be bad. This will figure into what follows here.

It’s the story of Lt. Cdr. Charles Swift, the Navy JAG officer who is soon to be leaving the Navy because right after he won his case on behalf of the detainees in front of the Supreme Court the Navy lawyer promotion board just happened to not-promote him, and he has to leave the Service. This despite the fact that Congress – infamously – passed new legislation directly after that victory giving the Unitarium all the legal power that had been refused by the Court.

It’s a curiously schizoid article, but then Brenner has to keep Swift and the JAGs as good guys while simultaneously keeping the government (or some part of it) as the bad guy(s) without at the same time pissing off the Unitarium. It was no doubt a difficult assignment.

She calls Swift’s position as “[A]n untenable situation. He had been asked, as a military lawyer, to defend enemy combatants …” Recalling the points made on this site (“Bishops Bomb”, “Warrior Professionals”, and the several Watada Posts) it is clearly a logical conundrum to have U.S. military officers defending anyone whom the military has already designated as defendants in military trial proceedings; those trial proceedings, as all military ‘justice’ proceedings, are in the military’s unspoken view military operations in pursuit of military and national security goals, and team-players don’t buck the team.

This is especially complicated because, the article goes on, if Swift were to follow the military rules as a civilian lawyer he would be committing “ethical violations". That the military, implicitly, has set up such an impossible situation is clear indication to the careful reader that ‘military’ and ‘law’ don’t easily go well together. Of course, the military can claim that it is only following orders (Ja) but it is the military’s own operational philosophy, since espoused by the Unitarium, that is now echoing back here: there is one Boss and what he says is what happens and the team will bring his plan to a successful and victorious Outcome. This is the philosophy that informs this Presidency and this Executive branch, to the clear and present detriment of the Republic.

Brenner, as noted, doesn’t deal with that directly, although to her credit she then goes on to assert that there can be no doubt that the swift ending of Swift’s JAG career “sends the chilling message to remaining military lawyers about the potential consequences of taking their job, and justice, seriously”. Precisely.

But this has proven no obstacle to the lawyers – most of them – over the half-century of the military justice system’s codification. One simply makes trade-offs, a living, institutionalized, systematized exemplum of Hannah Arendt’s “banality of evil”. (As might also be said of the recently discovered rot in the realm of those other professionals-in-the-military, the doctors, specifically the mess at Walter Reed and probably at all the military hospitals.) Listen to no senior military doctor or lawyer, currently serving or retired, when he reports himself ‘shocked, shocked’. His winnings are already in his hat and on his chest.

Swift himself is a tad schizzy. Asked about a “New York Times” editorial decrying his own effective firing, Swift is irritated: “There is nothing clear-cut about this … It is not black and white”. He may want to come back to serve as a civilian defender in military trials (servicemembers are perfectly free to hire such counsel, at their own expense, and perhaps some of those civilian counsel take food-stamps).

In an article that cannot but limn – even if only by omission – the outlines of a rigged and ruthlessly cynical system, Swift makes several more comments along those lines: “I believed that if navy [sic] JAG set up the military trials, they would be first-class”. Well, yes, but first-class w-h-a-t??? It’s impossible for a competent professional with his background, his training, and his past and present experience to make such a statement if it is to be taken at face value.

Equally so is Brenner’s comment, channeling Swift, that his boss JAG was “a prosecutor’s prosecutor, trained at Duke Law School and dedicated to justice”. It is as easy as falling out of bed to be a successful prosecutor as a JAG, and if you can wear your ribbons correctly and show up in a pressed uniform you’re on the way to quick promotion. Duke Law School is – like the whole Duke operation – a heavily military and Southron-influenced school; that it is shrewdly trying to position itself as a defender of Law and Justice in the face of the increasingly overt monstrosities enacted by the Unitarium may very well be shrewd act of self-preservation. Much as last Fall the JAG bosses made such a pious public show of declaring their opposition to the tribunals and saying that they had opposed the Untarium’s legal and illegal actions since 9-11; after which week of stand-up stuff they reverted to the invisibility and silence that characterized their previous four years. And “dedicated to justice” is a stock filler line so blatant as to beg for – as they say in therapy – ‘unpacking’; especially in the context of military justice.

A Marine lawyer, a colonel, crisply if informally quotes Rule 5.4 of the JAGs: “If you have a military lawyer, he is completely independent, even though he is subject to his military senior.” Yah. Just like if you have a Navy ship at sea the hull is completely dry, even if it is plowing through the open ocean. Independence against the command program is precisely what the military is not all about.

The article continues, noting that one of the most efficient ways of “weeding out troublemakers” in the Department of Defense is simply to not-promote them; because under the military policy, if you’re not promoted in a certain amount of time, then you have to leave the Service.

But, delicately, the colonel notes that it’s really just that the “JAG corps prefers their career lawyers to be generalists, not criminal defense specialists”. But of course, mon colonel! If one gets too good at it, one might start to take it seriously. And if one is left on (the invariably doomed) defense too long, and sees what goes on and what s/he has to do to stay on the team, then the JAGs might have to start providing regular liquor rations to them just like the SS had to provide to its execution squads in the Ukraine. But for many military lawyers, it must be assumed, good pay and benefits and resume-fattening ‘experience’ and the occasional medal seem able to do the trick. And a trick it indeed is.

Nor is the colonel trying to hide anything. “There has always been a psychic and moral division with JAG. Soldier first or lawyer first?” In the words of Ulysses S. Grant: “It’s too too true.” But the colonel, having pointed out the obvious, neglects to go into the heart of the matter: there can be no halfway solution to this dilemma. An honest professional counsel sells out either the client or the military responsibility of an officer. And like prostitution, it’s an all-or-nothing sorta thing, one or the other, zero-sum. The JAGs prefer to be known for their zero tolerance.

And as discussed at length on this site (“Military Justice Is No Music”) this dilemma of the JAGs merely reflects the dilemma of all military ‘justice’: it’s an impossibility, however necessary it is to keep up appearances in a democracy whose People – at least in the vision of the Framers – are so thickly hedged about with Constitutional protections against arbitrary government power and against the deciderings of Unitary Executives such as kings and …

More honestly, and essential to injecting some ‘bad guy’ stuff to spackle things up, Swift observes that “There was the legal case and there was politics. Politics drove every decision”. So much for the professional ethos of dedication to Justice and Law. Fiat Justitia, ruat coelum – unless the command directs otherwise.

But at one meeting of JAG defenders, “all agreed that what was happening at Guantanamo was something straight out of the Gulags of the Stalin era”. A ray of sunshine indeed. And Stalin’s ideas have a long if muted relationship with military justice. He was of the opinion that as long as your guys controlled the whole process, then you could write into the rules any ‘guarantees’ that you needed in order to keep the public happy, or at least quiet. No use making unnecessary trouble for yourself by painting a great big “Rigged Game” on the thing; keep people quiet and keep on sending your quotas to Siberia. It’s not rocket science. As demonstrated in “Military Justice Is No Music”, it’s possible he got the idea from the Army JAG of the First World War era, one General Crowder. So things are a tad, as the Pentagoons like to bray, “incestuous” in these military justicial matters: Stalin/Crowder, Pentagon/Praesidium, JAG/Gulag, Justice/ Shmusstiss.

And, upon discovering that the order to commence tribunals came from the Deciderer himself, Swift says “When the president says you are guilty, you better damn well be guilty.” Because “[T]he most important rule is: Don’t embarrass him.” Now this comment doesn’t make sense unless it’s trying to convey this: If the president has already declared you an enemy combatant, then no JAG better go in and prove that you’re not, because the first rule for JAGs is that you don’t embarrass the president. Not unless you have no family to support, no bills to pay, no need for a military career, and you have a serious trust fund.

The article goes on to describe the similarly dissonant experiences and musings of a civilian attorney named Katyal who gets involved in the defense, finds out all sorts of unbelievable things before breakfast, and yet still thinks JAGs are pretty much a swell bunch. Well, most vampires are, until they’re ready to eat you or you get out of their way so they can eat somebody else. The citizen seeking to be informed could do worse, nowadays, than to bone up on vampire lore.

The JAGs assigned to defend the Gitmo detainees under the new rules (thanks and a top of the day to Congress) establish their bonafides by confiding that they refer to the ever-changing ‘rules’ as “Alice in Wonderland”. It’s nice, it is. But the Israelis probably wouldn’t have taken that defense from Eichmann (not that that monstrous drone would ever have thought to make it) and the Nuremberg panel wouldn’t have taken that defense from Keitel or Jodl: In ze efeninks, among unser-selfs, ve vood laff at ze Fuhrer’s krazy-bad ideas, ja?

Nein. Nope. Nuts.

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