Sunday, July 13, 2008


The attorney Jack Balkin has a meaty article on his blog entitled “The New Fisa Law and the Construction of the National Surveillance State” (

His thought is that the National Security State has given way to the National Surveillance State and that both Parties are in support of this dynamic. Therefore, among other things, an Obama victory will not ease the awefull pressures on democratic politics and the Republic because either he is well-intentioned but facing formidable and entrenched bipartisan indenture to the current version of ‘big government’ or because deep down he himself is as ‘big government’ a guy as any of his Congressional colleagues. (For this last see Mike Whitney’s article on counterpunch, “Worse than McCain?” (

I’m not sure which of the two foregoing alternatives explains Obama, but in either case We must brace Ourselves to the immediate fact that a Democratic victory – while still preferable to a Republican one – guarantees no solutions at all to any of Our deepest national problems.

As I have said before here, the Tweedle-dee of the National Nanny State is as lethal to a democratic politics and to the Republic as the Tweedle-dum of a National Security State. In their remorseless quest for a reliable voter-base – a possibly impossible quest whose very pursuit has contributed to the present parlous condition of the Republic – the Democrats will have to exhibit ‘heroic’ levels of advanced thought and integrity to avoid simply weakening the Constitution and a mature democratic politics by introducing further stressful deformities in the service of both ‘sensitivity’ and ‘patriotism’ – those wolf-in-sheep’s-clothing words of the Left and the Right respectively.

Let me also point out that to supervise adherence – obedience, really – to this New National Order (so faraway, it seems, those days when the U.S. was going to impose a New Order upon the world; now it runs the risk of turning into a banana republic on steroids itself, in both its domestic and foreign affairs) the dynamics of military justice are far more ‘efficient’ than those of Constitutional, adversarial practice. I refer of course to the actual dynamics of the military justice system and not to its densely-sugared frosting of familiar Constitutional, independent roles which all military lawyers are trained to play with straight, indeed pious, faces. See earlier Posts for amplification.

And while I admit (and not unhappily) that the present strains of Guantanamo and the impending conclusion of the Bush Administration have helped catalyze some independent speaking-out among the ranks of the JAGists (to borrow a Soviet grammatical formulation), still the dark ur-reality of the military justice system is that it is ‘company justice’ utterly controlled by the military bosses and hence incompatible in its very essence with Constitutional protections and guarantees. And further that those who play their role in it, willy or nilly, perform a cynical and Constitutionally lethal kabuki designed to shield from The People the true nature and dynamics of the system.

Now this type of system, designed to maintain conformity and totally weighted in favor of the government, where all Outcomes are controlled to ensure that the government’s ‘interests’ are met, is obviously a perfect companion to the National Security State and to a Unitary Executive. Far more so than the much less predictable adversarial process, that Constitutional ‘agon’ wrassled out among numerous independent players (judge, jury, prosecutor, defense counsel). Naturally, the government claims – as governments eternally claim – that the present ‘emergency’ simply cannot permit the inefficiency and time-consuming meanderings of traditional American and Western justicial praxis.

But what We must also recognize, is that government-by-emergency has also been the hallmark of the National Nanny State, which is itself the product of that Revolution of the Identities that began in the late ‘60s (under Democratic auspices) where each new Identity brandished its own particular ‘crisis’ and ‘outrage’ which constituted a sort of ‘Bloody Shirt’, an emergency that trumped any ‘quaint’ concerns for … well, the inefficiency and time-consuming meanderings of traditional American and Western justicial praxis.

Thus, I think, despite some of the most egregious cases that have come to light in the past few years – the Watada case, the coincidental sudden collapse of JAG opposition to the infamous Military Commissions Act with the award of a third-star to each Service’s JAG, the brazen manipulations of suddenly-unreliable military judges and attorneys in the Guantanamo cases, the jaw-dropping interference of political appointees to manipulate outcomes of major cases to conform with purely political needs, and the persistent subsurface grumble of suspicion that so much ‘bad stuff’ could not have happened for so long without the connivance or at least approval of JAGs of senior rank and the knowledge of JAGs of even more senior rank … despite all that Congress has not been inclined to look more closely.

The fact that so many of the Capitol Hill crowd are lawyers is of course one element in that; which shows to go ya that being a ‘professional’ doesn’t guarantee a working faithfulness to your profession’s ethics and ideals. The fact that the American Bar Association itself has a standing sub-unit on military law and lawyers is another; there’s gold in them thar hills, and what professional organization is going to deprive its members of a chance to get the professional snout into the trough?

And yet the military psychologists have been exposed betraying their most fundamental professional responsibilities in order to run with the big dogs – with the connivance of the American Psychological Association, even though the American Psychiatric Association has prohibited its members in the military from aiding or abetting interrogation in any way. (The military chaplains – now so largely comprised of the myrmidons of the Fundamentalist Ascendancy – have waded into the fire-lakes of ‘blessing’ combat and ‘doing whatever it takes’ for Jeezuzz with a ferocious cactoid enthusiasm (grounded in their ‘literal’ belief in the Book of Revelation) that leaves the army-blessing French and German bishops of WW1 looking like weak-stemmed houseplants.)

Military justice has been a great gravy-train for almost all of its reliable practitioners. If there has been a cost to professional and personal integrity the military lawyers haven’t noticed it, or haven’t considered it anything more than collateral loss and you have to expect some ‘dings’ when you go in harm’s way, as the glory-script would have it.

Nor has any such consideration prevented them after their departure from infiltrating the faculties of law schools, creating erstwhile ‘institutes’ that provide faux ‘expert’ opinion, assuming positions as district attorneys and Clerks of Court, and even rising to the bench in State and Federal judiciaries.

But the dynamics that would provide a ‘ground wave’ of ‘grassroots support’ for the subversion of the civil justice by the military justice modus operandi is even more worrisome. It has recently revealed itself in a clear way up in Boston. A state representative, Rep. James Fagan – himself a criminal defense attorney – recently opposed a mandatory minimum sentence of 20 years for child-rapists, even first-time offenders. Look, he said, you’re going to reduce the opportunity for a plea-bargain and force the defendant to proceed to a trial and when that happens I, for example, as a defense attorney, would really have to attack the credibility of a child-witness/accuser just as I would any adult accuser because that’s my job; and that wouldn’t be good for the children who have to go through that.

Now that’s an interesting approach to the matter. Let’s pass over the fascinating quasi-acknowledgment that in our modern American reality, a person accused of a sex-offense – especially but I bet not only an offense against a child – is so certain to suffer a jurisprudential and media stampede against him (always ‘him’) that he’s well advised to plea-bargain regardless of guilt or innocence.

For present purposes, it’s the public reaction, as evidenced in the local papers, that is of relevance. Interestingly, the ‘Boston Globe’, engorged by the Pulitzers won for its ‘reporting’ (and pretty much starting) the priest-sex-abuse ‘crisis’ in 2002 even as the numbers of reported allegations (and the Globe’s subscriber rolls) had been steadily declining for a decade … well, the ‘Globe’ had little to say.

The other paper, the mostly tabloid ‘Boston Herald’ actually made a stab at a certain amount of balance, while at the same time deploying (and – alas - milking) the now-obligatory script: outraged parents and citizens / sensitive and compliant pols / -> draconian legislation announced in stentorian bray / apologies by anybody who had demonstrated bad faith by proposing even a moment’s worth of deliberation. Except that this time the offending politician did not so easily back down. Nor did the ‘Herald’ thereby try to shred him for his conscientiousness.

The article “Pol stands by his ‘strong language’ vs. Jessica’s Law”, from June 26 ( does quote the parent of a murdered girl who had been raped (an awful, but rare occurrence, especially if perpetrated by strangers) who opined – impressively enough – that “what this guy [the state representative] is saying is true”. But then the parent adds “he [the state representative] just added insult to injury”. So somehow, even when the victim – or parent of the victim – acknowledges the truth of a comment, if the comment does not agree with what they want, then it’s “an insult” a-n-d adds “insult to injury”. When the truth has become an ‘insult’ to a victim’s feelings, and on the basis of that should not be considered, then how far away are We from a ‘sensitive’ Stalinism?

Worse, although the Letters to the Editor (\"Rep.+James+Fagan\"&By=) commenting online contained some thoughtful reflections, there were far too many short-and-sharp comments that simply presumed the guilt of the accused a-n-d belittled defense lawyers who would slow down ‘justice’. This is disturbing. When even the public is coming after defense-lawyers, blaming them for ‘interfering’ with justice, then it’s clear that a) the public no longer grasps one of the fundamental realities of Our constitutional justice system and b) the presumption of guilt and the eagerness for ‘justice’ far too easily morph into a self-righteous vengeance.

And when the justice system is perverted to that end, then the public will be debauched in a primitive self-satisfaction even as one of the key foundational elements of the Republic is twisted and hollowed out until it’s dust.

Naturally, the similarities to Nazi and Soviet praxis – where ‘defense’ lawyers were considered at best as window dressing and at worst as obstructionists themselves – cannot be ignored. And We should be very afraid. But We cannot leave it at that, huddling in a fearful ‘interior exile’ as vengeance and passions run rough-shod over the heritage entrusted to every generation of Americans since the Founding.

The military approach – do whatever it takes to ensure that our desired Outcome is achieved – has been insinuated into the public consciousness and the criminal law throughout the 1990s, as each ‘emergency’ – especially in regard to women and sex offenses – demanded the ‘efficiency’ of a military-type response, rather than the sleazy dawdling of civilian jurispraxis. Perhaps it is not clear, the symmetry between the Left’s too-quick embrace of militaristic methods in civilian justice and the Right’s too-quick embrace of militaristic ‘solutions’ in foreign affairs.

And if an examination of available fact is any guide, it appears that a close examination will reveal that the militaristic gambit into domestic affairs has yielded as great a crop of failure and official dishonesty as the militaristic gambits in Iraq and Afghanistan. It’s just that it’s easier to ‘spin’ the ‘narrative’ in domestic affairs than it is in war, where shot and shell from a pretty clear and irresistible reality-check.

When the citizenry themselves are coming after ‘the defense lawyers’, then a crucial tipping point is coming toward Us, and not slouching. We need – and this is his only advice with which I can agree – to ‘erwachen’, Hitler’s early and clarion summons: Wake Up!

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