CRIMES AND WAR

Jeremy Brecher and Brendan Smith write about “Will War Crimes Be Outed?” in an article originally in ‘The Nation’ but also on Truthout, and available here.

It will be interesting to see if We can judge Ourselves with as much gimlet-eyed clarity as We did the Nazi functionaries 60-odd years ago. Going out and renting ‘Judgment at Nuremberg” from 1961, drawing near to the flint and glint of a by-then-craggy Spencer Tracy’s back-country judge, and sensing the heat and sharpness of his focus on truth and justice, and then imagining some of Our own Beltway macher and their enablers trying to swing into their vaudeville in the unwavering beam of that steely glare … well, that’s an exercise in a sort of civic prayer, the kind that the lesser-visioned might accompany with popcorn, but the larger-souled with sackcloth-and-ashes. Feel free to try it.

Tracy’s judge is rooted like a rock in concepts of decency and truth and professional responsibility – especially when one wields the power of high justice . Such a ‘character’ is not to be found inside the Beltway these days … anywhere. And to the pleas that in the service of a ‘larger good’ or of the ‘needs of the People and Nation’ certain allowances must – ach! – be made by any ‘responsible’ official, especially one of the ‘elite’ who ‘know’ … he is unmoved. Like an Old Testament prophet, or like an Old Testament ‘God’, his gaze – bearing within it a steady and solid stream of truth – he is unswerving. Perhaps his is a ‘moral equivalent’ to war, a moral equivalent to Sherman’s orders to his subordinate commanders: we are here to march from Atlanta and take Savannah , so do not let yourselves be distracted from the road.

Neither the fuzzy ‘optimism’ of the Sixties hippy nor the everything-is-good-because-nothing-is-bad deconstruction of the Seventies social-revolutionaries would tolerate such ‘rigidity’, such ‘judgmentalism’. Are We the better for that? Nor is this a subtle refutation of such social progress as has been made in recent decades. But such progress – to the extent that it actually is progress – should always have been seen truthfully for what it represented: as both a desirable ‘good’ and a tremendously fraught challenge that would require the most careful and deliberated calibration to avoid creating at least as much regression as progress, if not perhaps more.

At this point The People are comprised of so many who have been raised in such an atmosphere, who have grown to an adulthood built on the bright, shifty sands of ‘life’s a beach’ rather than the hard, straight surfaces of a Road that must be travelled without distraction.

It’s curious that as the military virtues inculcated by the military service of so many Americans in World War Two have faded – such that the citizenry have become less ‘military’ – yet the government has sought to militarize the citizenry. At the higher end of its range, military service inculcates habits of self-organization and self-discipline and teamwork and an abiding alertness to one’s surroundings and an unsleeping questioning as to whether ‘this’ contemplated action will yield the needed results and at what cost; this is distinct from what used to be thought of as the ‘civilian’ approach: less of all that – a more expansive concern for the self’s comforts and amusements, less awareness of the ‘cost’ of everything, measured against a ‘goal’ or an ‘objective’, less trellis-ing of the individual on an overriding purpose.

Yet as those qualities faded from the national characteristics – or withered under the dual assaults of death and deconstruction - the increasingly Shape-less citizenry came to rely on the government, as if it were an exo-skeleton, for purpose and objective and discipline and – oy! – meaning itself.

No government deserves that much dependence. And not Washington or Jefferson or Jackson or Lincoln or Teddy Roosevelt would have expected it or thought it healthy from a civic point of view. The current generations have wound up as ‘other-directed’ as the Fifties’ popular sociologists had feared those generations were becoming. Though few wear ‘gray flannel suits’ anymore, yet many are indeed ‘organization’ folks, unable to stand on their own, detached from their own interior strengths, ignorant (and thus at the mercy) of their weaknesses, penned up in a flatness fenced and policed by forces – social and ‘business’ then, ‘patriotic’ and governmental now – outside of themselves. The new film ‘Revolutionary Road’ doesn’t simply limn the aimless emptiness of the Fifties and its ‘adults’, but touches more deeply into the great abyss of meaninglessness lurking in all human beings, against which the adult must early and ever strive to impose a Shape and bring forth order and fruit from such dull chaos. Nor could the moist though brightly colored clay of a James Dean or Brando’s defiant-biker offer a reliably constructive and life-giving alternative, one that would put a firm foundation under a citizen capable of taking one’s place among The People. And the Republic is thus greatly diminished. As We are now seeing.

What can We expect at this point from a political leadership that has for decades shaped itself in such a way as to profitably deal with an increasingly dependent citizenry? The pols are clay – whether mushy or brittle – because the citizenry who elect them have become, in far too many instances, mushy or brittle.

And like the urban crowds ever milling about in the HBO series “Rome”, We now appear to them and their corporate masters and media enablers as nothing more than a milling mass of sheep, to be placated (millions of anything – even sheep – can cause a lot of trouble if they stampede) while the ‘great ones’, the magnates and the optimes pursue their various plots and plans.

But I can’t let pass a point raised by “law professors Anthony D’Amato and Jordan J. Paust (the latter a Professor at Northwestern School of Law): Obama is required to faithfully execute the laws and if credible accusations of law-breaking are put forth, he cannot choose whether or not to investigate.

True enough.

But Professor Paust is also a former Army JAG and, as well, on the faculty of the “Judge Advocate General’s School”. So I have to point out what I have pointed out several times before, especially in Posts in the latter months of 2006 and the Spring of 2007: in the matter of war crimes and the endless ‘insults’ to the rule of law and the spirit of American law, the military justice system is not the redeemer of the present unholy situation; it is rather the source, fount, and origin of it. Bush did not oppose military law; he simply took it recklessly to a higher level, one dangerously more exposed to the possibility of public view (and, hopefully, review).

I make no judgment as to the integrity of Professor Paust’s personal position. An ‘upside’ to the catastrophe of the past several years is that there are now younger JAGs (Paust himself is only a Captain at this point) who refuse to acquiesce in the prostitution of Western law as it applies to Guantanamo and Abu Ghraib, to torture and ‘enhanced interrogation’ (that phrase borrowed shamelessly from Himmler). Or he may be simply contributing – knowingly or not – to the JAGs’ effort to save their core operation by getting themselves out in front of the exposure of Bushist illegality, hoping that We will unthinkingly make the inference that if the JAGs are ‘against illegality’ then their system of military justice must be ‘good’.

And that inference would not be justified.

The system itself is the problem: ‘company justice’, where the legal system is seen as an arm of the command that brings the charges to begin with, and where all the players are on the same side except the defendant him/herself.

Surely, if Congress were to pass legislation to the effect that the General Motors Corporation is so essential and unique that it should be allowed to have such authority over its employees that it can prosecute the entire criminal code – using judges, prosecutors, investigators, defense counsel, and jury members in the pay of the Corporation, and assuming that almost all of the witnesses would also be employees of the Corporation … if Congress were to do that, We would not, could not, stand for it.

Yet staging such a kabuki is precisely what the military system does.

We are currently seeing the emergence of a debate about the Federal Reserve that bears much relevance to the problem. In 1913 Wilson (who later bitterly acknowledged that he had ‘ruined his country’ by doing it) got Congress to go along with the erection of the Federal Reserve authority. In essence, Congress ‘delegated’ its constitutional control over the money supply, and delegated it to gentlepersons who, for all their specialized knowledge, had a very great deal to personally gain from such control. There was, and always has been, a profound constitutional question as to whether Congress even has the authority to ‘delegate’ its power over the currency and the money supply to some other entity.

A few years later, on the eve of World War 1, the military – unsleeping in its sharp lookout for the aggrandizement o fits authority and its role - approached Congress and sought the authority to prosecute not only the old Articles of War, but rather the entire criminal code, through its courtsmartial. In order to do an end-run around the clear strictures that the Constitution placed on Congressionally-erected courts (so-called Article Three courts, named after that section of the Constitution governing judicial procedure), the generals proposed that Congress ‘delegate’ its authority to the military, although the military’s command authority stemmed from Article Two, the Executive; Congress, thus, would be delegating its power to the Executive - and precisely, its power over criminal process, so carefully structured by the Founders. The Constitution and the Founders most specifically did not want the Executive to be running a criminal court system; the Founders recalled such legal abominations as the Court of Star Chamber, that answered to the Crown and the Sovereign as late as the era of Tudor and Elizabethan England.

But Congress’s enabling of the Federal Reserve authority just a few years before was a ‘delegation’ that had breached the firewall, and the generals were trained to take advantage of any breach of any wall that limited or confined their authority and range of operation.

There remains the profound Constitutional question as to whether Congress even has the power to make that delegation. And thus whether the military has or has ever had any right to conduct ‘criminal’ justice. Indeed, it was not until the Gingrich Ascendancy in 1994 that the military felt ‘safe’ enough to suddenly label its assorted ‘courts’ and investigative services as ‘criminal’: thus the Court of Criminal Appeals and the Naval Criminal Investigative Services (irony, alas, is lost on the Pentagon mind), among others. These pretensions were therefore formalized only recently, and effected ‘overnight’ (think of how much it cost to change all the badges, stationery, door and building signs, and templates for court documents).

This question joins the older and rather clear problem in the Constitution: in the Fifth Amendment the Founders clearly placed a comma in such a way as to forbid the military to conduct its own trials of its soldiers except in time of war.* That’s how nervous the Founders were not only about a standing army, but about an army dispensing’ justice’ through its command structure.

The current codification of the military justice system – the Uniform Code of Military Justice – was deployed in 1950, only after the generals had stiffed Harry Truman for five years; Truman had been deluged by complaints about military justice from returning vets in 1945 and even General Jimmy Doolittle’s blue-ribbon commission recommended major changes to reduce the very ‘command influence’ that was the precise reason the generals wanted to be a so-called Executive court rather than an Article Three court (bound by all the Constitutional strictures).

How to keep their ‘criminal’ power without accepting the Constitutional strictures? The generals and the JAGs borrowed from Stalin’s playbook of the mid-1930s: if you own all the players, you can make all the ‘guarantees’ and pious promises you want, even in writing, because when push came to shove your players would perform exactly as you wanted them to. The players in this case being the judges, prosecutors, investigators, defense counsel, and any witness in uniform who wanted to keep his or her job.

Truman was displeased, and said so publicly. But it was the Cold War and the Commies were everywhere. He couldn't afford to take on the Pentagon and a hive of career-hungry lawyers.

And here We are.

As the citizenry becomes less able to Shape their own individual lives, as the government intends to exercise even more power over them for ‘national security’ or for their own good, a militarized justice system will serve the purposes of control far more efficiently than the ‘old’ (perhaps ‘quaint’?) Constitutional system of adversarial justice.

Things are taking an ominous turn indeed.

Now Bush has gone and thrown the whole racket into the bright light of day, and the JAGs have to do something to save their core racket, as well as avoid getting themselves into … ummm … a ‘Nuremberg situation’ where they will have to fall back on the ‘only following orders’ defense.

Before they had sunk to the level where they made the Emperor’s horse a god, the Roman Senate exercised a crucial wariness of uniforms and swords operating anywhere except far away on the fields of actual battle. Caesar’s grafting of a military and imperial template upon the old Republic spelled its doom. And Rome did not end well, nor did its Citizens.

This was a lesson not lost on the Founders.

Our dependence on things military – on government – almost to the exclusion of any personal independence of spirit and vision, of personal and civic character, will continue to corrode even as it corrupts The People.

This is Our rendezvous with destiny. This is the challenge of Our time.

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* The actual text is: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger".

Note the effect of the comma after "Militia"; it extends the following phrase ("when in actual service ...") to cover both of the preceding clauses ("or in the Militia" and "except in cases ...").