MILITARY JUSTICE HIDES IN PLAIN SIGHT

In the August 14, issue of ‘The New York Review of Books’, Jane Mayer has an article entitled ‘The Battle for a Country’s Soul’, pp. 41-3 in the print edition. http://www.nybooks.com/articles/21716

To see the word ‘soul’ in print: ah, that takes me back …

I won’t go into the entire article. I just have a single observation. She mentions at one point an exchange related to her by one Col. Morris ‘Moe’ Davis, a military lawyer (‘JAG’ for short). Davis has been something of a darling to the media recently. Formerly a gung-ho JAG-ist, he had a run-in with William Haynes, then general counsel at the Pentagon in the matter of the military commissions.

The argument was over outcomes of the military commissions. Davis observed that “a few acquittals” might enhance Guantanamo’s (and the military commissions’) claim to generate fair process and fair treatment. Haynes, Mayer reports (getting it from Davis, no doubt) was horrified. “We can’t have acquittals! We have to have convictions. If we’ve been holding these guys for so long, how can we explain letting them get off?”

This pericope has been out and about for a number of months now, with no comment from the media beyond a gushing pride in Davis’s courage in standing up against the outrageous military commissions system. The media, after all, no longer have any Kolchaks; facts, let along finding facts out in the field for themselves, let alone figuring how to put facts together … these are no longer institutional skills possessed by the Fourth Estate. But all of this – as has been true for a number of years and even decades now – is prime territory for a new generation of Kolchaks.

Here are two very senior members simultaneously of the justice, the law enforcement, and – in one way or the other – the military communities; both are members of the Bar. Like two vampires conferring in a Transylvanian castle, they are arguing about outcomes. The media has clamped onto the fact that ‘heroically’ Davis differs with Haynes; yeah, sorta. The larger point – even if it ain’t such a telegenic and soapisch story – is that both of them implicitly assume that the outcomes of military trials are decidable by ‘senior officers’ before the lights even go on in the courtroom.

These are the moments – hidden in plain sight and hearing – when a dark world reveals itself, even against its will and intent; and – the hot ironies! – the revelations are eagerly spilled by erstwhile loyal minions (the media) who are supposed to be in the bag and only passing along ‘good stuff’ about the monstrous thing. And they say there isn’t a God.

Neither Haynes and Davis are thinking about Justice here; both are thinking tactically: Davis, that appearances can be better kept up if a few bones of acquittal are tossed out; Haynes, that it could blowback on them if folks started asking how a person could be held so long as the ‘worst of the worst’ and then suddenly be let off in acquittal.

Both are ostensibly thinking about the success of the program (those feculent military commissions) with the success of which they have been professionally entrusted. It’s not implausible that both are also on some level thinking of what happens in a ‘Summer ’45 scenario’ (my term): that is, after the government authority that ordered and protected their actions no longer exists, and they thus not only have to explain their actions (the horror!) to inquiring and sober minds, but they also have to justify that they should be ‘let off’ from being held responsible – and in the Year of Grace 2008, to do so without actually saying “I was only following orders”, which actual defense was pretty much undermined permanently by its overuse in the actual ’45 by a sorry collection of senior military officers, judges, lawyers, political bosses, corporate biggies and other members of a certain German ‘elite’.

As anyone familiar with the military mind and organization might have guessed, a sustained disagreement about so vital an issue, with such a senior authority, spells the end of a military career. Davis knew that now he would never make general, and that he probably wouldn’t get the traditional end-of-tour or end-of-career medal that has become an unofficial ‘gimme’ among the Pentagoon set. (And sure enough, Davis has since touted himself as being a heroic martyr because the said medal was indeed not ‘awarded’ to him when he actually did resign; and the media clucked in sympathy for so brave a hero’s great loss.)

Getting out when he did would cost him nothing but a career that was already guaranteed to go no further, and getting out would also position him to surf the next wave: opposition to the military commissions and the entire torture and dishonesty fabric of the outgoing Administration. He knew – as they all do now inside the Beltway – that he could count on the media to embrace him as the heroic ‘good guy’ in its soaper stories that pass for reporting nowadays. And that whatever he said would be ‘reported’ as if it were independently discovered and confirmed fact. Lovely. Stimulating. Uplifting. Inspiring. Onward, JAG-gy soldiers!

And of course, the fact shouts out to us that both men assumed as if it were simply part of the Pentagon wallpaper that the outcomes of military trials are predetermined. Which in a better world would put paid to the reprehensible and ridiculous media spin that the military commissions are evil because they do not provide the safeguards that the military justice system does. Phooey. The same guys who are running the commissions have been running the ‘regular’ courts-martial, and it’s a sure bet they didn’t simply unlearn overnight all the stuff about Justice and Due Process in order to administer these commissions: no, the JAGs were vampires long before Bush came along and made them run the commissions.

What the JAGs (most of them) are skittish about is that Bush is making them do their thing in the bright light of day. They prefer the night. And in that they are not simply following orders; they are following nature: the nature of the military justice system.

They will turn on Us one fine day (or night).