Tuesday, August 12, 2008


Josh White of the Washington Post writes about the very short sentence that a military commissions jury handed down in the Hamdan case, that detainee who was apparently Osama’s driver and auto mechanic for a while. (http://www.washingtonpost.com/wp-dyn/content/article/2008/08/09/AR2008080900800.html).

As you may know, the jury of military officers – probably of field-grade rank, with a lot of irreplaceable time and energy invested in their military career – found him guilty but handed him a sentence of five and a half years, which – given his time already incarcerated – means that he will only serve another five and a half months. The ‘judge’, a Navy captain named Allred, allowed the time served to count toward the sentence, and when Hamdan made his final comment that Inshallah (God willing) I shall see my family again soon, the judge piously intoned a benedictory ‘Inshallah’.

Both sides, prosecution and defense, claimed victory. The prosecution because he was found guilty, and the defense because the sentence was so unbelievably lenient.

Commentators have been trying to make sense in such a way that the military justice guys – the JAGs – and their system look good. And in this way, both ‘liberal’ and ‘conservative’ commentation arrive at a similar point: the military justice system works. To which I say: Hooey, phooey and baloney. As reason therefor, see below.

One particular commentary stands out: one Eugene Fidell, former JAG and now the head of a self-invented ‘National Institute of Military Justice’ – and also an adjunct professor of military law at Yale (thank ya vurrry mutch) – distinguishes himself by the particularly crafty way that he shills for the military system while seeming to be unimpressed with this particular episode. The lenient sentence does not surprise him, the article reports, because “the case against Hamdan was not particularly strong”. As if a weak case could ever stop the grinding wheels of military justice.

But further, he opines that the sentence “demonstrates, at the very least [lah dee dah], that you cannot count on a military jury to throw the book at people”. As shrewdly tossed a red herring as one is likely to encounter this side of perdition. Because the Characteristic Inalterable of a military jury is that it will do what it is told. Hence, if the sentence is lenient, then that was precisely what the military wanted to have happen.

And why so lenient? Because in symbolic terms it is the early months of 1945, and with judgment approaching with stern and measured tread, the shrewd professional military folk – especially the lawyers – are desperately trying to distance themselves from what they have done under orders of the now rapidly-outgoing … ummm … government.

And the cameras were rolling (figuratively, at least) and the eyes of the world were on the military system. To have its workings exposed to the bright light of day is not the preferred operational mode of military justice. Not unless the audience is totally in the bag. And this audience – comprised of the entire planet and a sizable fraction of an increasingly skeptical US citizenry – was not in the bag.

Fidell goes on to rhapsodize: “[The Hamdan case] doesn’t demonstrate the wisdom of the process, and it doesn’t illustrate the fairness of the process”. The only wisdom in the military system is of the Stalinist variety: own all the players and then for public consumption you can piously intone all the promises and benedictions you want. The vicious and cynical kabuki of his 1930s show trials were the templates from which the US military – under Harry Truman’s prodding, himself under pressure from huge numbers of angry returning vets – constructed a system that would guarantee its desired Outcome while piously ‘respecting’ the Process demanded by the American ethos. Charming.

Although the judge’s final sympathetic benediction in this case was probably over the top: his silky prayer was the equivalent, in the naval milieu, of a uniformed officer publicly offering a Shinto prayer in 1943. But if that’s what the bosses wanted, then it’s all good: Let’em see our sensitive, compassionate, merciful human side when you get in there, Allred, and don’t worry about overdoing it. Yes, boss.

It’s a wonder that any professional organization would countenance its members being involved in such a corrosive racket, but there’s money and reputation to be made and medals and promotions to be had. The psychologists jumped onto the torture bandwagon – piously, of course – but they took their cue from the lawyers.

In a classic example of how JAGs and ex-JAGs retain their professional affinities, one Gary Myers “who has practiced military law for forty years” opined that “military panels have a deep understanding of the command structure and are loath to punish low-level players when someone higher up is responsible”. Of course. And We the People can see that truth in action by considering the number of generals who were court-martialed for Abu Ghraib as opposed to the number of little people that were; or the number of general officers over the past 60 years who have been court-martialed, as opposed to the number of ‘low-level players’.

“They understand chain of command” he professionally puffs, inadvertently giving the game away. They most surely do. You don’t get to stay in the military very long if you don’t ‘understand’ chain of command, which effectively works out to doing what you’re damned told. Do Justice and the sky will fall … on you.

And they understand that military justice is 'combat justice' (from Roland Freisler's original Nazi) and that military law is the law-at-war ('Lawfare' in Pentagooneese). Law, to the military, is a weapon (making thus a very strange but lethal bedfellow for the 'critical legal theory' of the Identities' revolutions). Law to the military is not a referee; a military at war accepts no outside authority. Law to the military is not a finder of fact: 'Victory' is the only 'fact' that counts, and that Outcome must be most efficiently guaranteed. And it is. And now every buzz-cut or 'victim-sensitive' D.A. in the country wants to adopt this 'efficiency'. Oy.

And as if the military commissions themselves weren’t so repulsive, the still-in-office government is now asserting its right to keep its detainees in custody even if courts – any kind of courts – find them innocent or not-guilty or even if they finish their sentences. We recall that Hitler, faced with the recalcitrance of German civil courts – for a while in those early years of the Reich’s paradise – simply ordained that those arrested by the Gestapo or SS could be retained in custody no matter what the courts ‘found’; black vans waited outside the courthouses of Germany, for all passersby to see. For a nation so enraptured of democracy, and so fondly attached to Israel, this country sure has been adopting a lot of a certain German government’s policies and practices. Would they laugh you out of every studio in Hollywood, with a phantasmic script like this?

We’re going to see more of this sort of sleazy puffery on the part of ‘experts’ who are themselves in on the game, like doctors who prescribe medications because they’re paid by the drug companies. Ex-JAGs, JAG roadies, and all the press whom they grace with the easily-packaged ‘insight’ into the system.

There are no doubt a very few JAGs who are trying to do the right thing and may they be a blessing. They will be tolerated and even head-patted for as long as the current danger to JAG-gery lasts. But they will find no further career in JAG-dom. And if they’re trying to be decent attorneys of integrity, then being thrown off this ‘Titanic’ will be a life-saving, soul-saving grace.

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