Monday, May 18, 2009



Glenn Greenwald is conducting an extended and informative exploration of Obama’s sort-of embrace of ‘military commissions’.

A military commission is some form of tribunal (let’s not dignify it with the term ‘court’) run by the military which will theoretically provide an adequate instrument by which detainees can be adjudged to be ‘terrorists’ or not.

Nobody seems to be able to figure out why on earth Obama would embrace them. After all, there are the federal courts, there are courts-martial as conducted by JAGs under the Uniform Code of Military Justice (UCMJ), and there is some thought of an international tribunal. Yet Obama has embraced the Bushist military commissions.

I have a thought: he has embraced them because noooooo-body in the Beltway universe wants to be exposed in an open court. The government, claiming ‘national security’ and state-secrets, doesn’t want to publicly air its bloody laundry for the world to see. Large numbers of Beltway biggies ditto, since their active or passive collaboration with the whole torture mess cannot be explained away without looking like a duplicitous – if not indeed treacherous – clown. Even, I’m thinking, the Israeli friends (can no one remember the Mob’s ‘Friends of the Italian Opera’ society in the old films about the 1920s?) are not overly excited about letting Us see exactly how similar to the Israeli ‘war society’ and ‘permanent war culture’ this nation has become, especially since 9-11.

And the JAGs … ah, the JAGs do not want courts-martial because they don’t want a) to have their own core racket – the administration of military ‘justice’ – exposed for all to see, nor b) do they want to be ‘seen’ as associated with the torture mess, nor c) do they want their own complicity (despite their seeming to stand-tall after the cat was undeniably out of the bag) exposed.

Actually, the whole ‘military’ route is rife with troubles. The core difference between ‘commissions’ and ‘courts-martial’ is merely one of degree; both of them are run by an organization that is hierarchical, and that maintains its efficiency and ethos precisely by ensuring that all uniformed folks do what their told. JAGs, as you recall, whether acting this week as ‘judges’, ‘prosecutors’, or ‘defense counsel’, are all uniformed military officers. So are the members of the ‘jury’ and most of the witnesses. The military investigators are not, but their pay, promotions, and bounteous perks all come out of the Pentagon budget.

And while Americans seem somewhat content to assume that ‘military justice’ – at least here – is just Perry Mason in uniform, few other citizens of the world are laboring under such delusions. Indeed, the Pentagon itself is eager to prevent US troops from ever coming into the custody of any government’s military courts (or any other courts) – the Pentagoons know full well how their game is played, and they don’t want to wind up on the business-end of it, don’t want to wind up ‘down-range’ – as they say – of what is and has to be by its very nature a rigged scheme.

Interestingly, there are a couple of JAG-gy pawprints on Obama’s comments. “Military commissions have a long tradition in America”: Well, this is the same long-past-its-sell-by-date baloney that the JAGs use to make it appear that their military justice system ain’t but a thang, nothing but a codification of long-standing American and Western practice.

Not hardly. Yes, the practice of court-martial – a military trial run by the military – has been around for a long long time. But only for specifically military offenses.

The idea of allowing a military court to prosecute the entire national criminal Code, exposing uniformed citizens to the full weight of the government’s criminal-justice authority without a credible, substantive provision of Constitutional rights and protections … this is not something that would have occurred to George Washington. Indeed, the Framers were soooo mistrustful of military justice that the Fifth Amendment specifically prohibited it even among the military unless the nation was actually at war. (This reality was one of the first to be obliterated with the connivance of the Supreme Court, very early in the 19th century, though as recently as Thurgood Marshall’s tenure the point was raised that the text of Fifth Amendment was rather clear on the subject and that consequently the present military-justice arrangements are in violation of the Amendment and have been for quite some time.*)

It was only in Wilson’s time that the military was given the right to prosecute service-members not only for military offenses at any time (already a violation of the Fifth Amendment) but that it could prosecute the entire Criminal Code. This was in 1916. In 1913 Wilson had pushed Congress into ‘delegating’ its power over the currency to the Federal Reserve (which later Wilson, and perhaps We here and now) came to regret.

In 1916 Congress ‘delegated’ the power to conduct criminal prosecutions to the Executive Branch – an act so contrary to the spirit of the Framer’s vision (think: Court of Star Chamber and Cromwell’s Protectorate) that most folks cannot imagine that Congress could do such a thing. Hence Obama’s and some commentators’ reference to “Article II courts”: genuine Constitutional courts are under the authority of Article III of the Constitution, the Judiciary Article. Article II, of course, deals with the Executive. Can you say ‘divine right monarchy’?

Indeed, the recent economic catastrophe has raised some question as to whether Congress even had – or has – the power to ‘delegate’ such a fundamental responsibility to any other person or office or entity or Branch. With the Federal Reserve Congress ‘delegated’ its currency power to the financial moguls (formerly known as the Robber Barons). In its 1916 gambit Congress delegated its authority to conduct Constitutional criminal process to the Executive, and to the military as a sub-branch of the Executive.

The Supreme Court played along, as it always has, by embracing the Alice-in-Wonderland position that a hierarchical organization can own all the ‘players’, and simultaneously play the role of ‘victim’ and ‘judge’, and yet maintain an impartial, fair, and robustly Constitutional competence to try, convict, and imprison. On that thinking, why not let Ford or Microsoft conduct company-justice on their employees?

Surely, the pious assertion that the military officers involved are all ‘honorable’ and would never think to break the law or their Oath (Oaths, plural, in the case of JAGs who are both sworn attorneys and sworn military officers) is nowadays clearly visible as the fairy-tale that it has always been.

And with Joe Biden’s son a JAG, and one influential serving US Senator as a JAG Reserve general officer and former military judge, one has to imagine that if the JAGs wanted to court-martial the detainees, it would happen forthwith.

But Obama, himself a professor of Constitutional law, goes and imperils his absolutely essential credibility by resurrecting the Bushist ‘military commissions’. Let Us assume that he does not have a political death-wish. Why then would he do it? Who would benefit from this frakkery of a change-in-position?

The JAGs, I am saying. They don’t want to risk exposure of their whole racket. After all, a lot of lawyers make a very nice living, and garner lots of status and bennies, administering ‘military justice’. And they don’t want that all to go away. Nor do they care to get any closer to the looming, volatile ‘war crimes’ thing. They are not very interested in being ‘down-range’ of their own system, nor seeing their system exposed for what it has always been: a rigged game, a fraudulent kabuki imitation of actual Constitutionally-protected criminal process, dressed in a uniform and wrapped up in the Flag.

They are presently deep into the strategy of presenting themselves as ‘the good guys’ in the script.

But this power that’s pushing Obama into such an erratic and dangerous orbit is coming from somewhere. And the JAGs and their system are a black-hole presently invisible to media scrutiny (for whatever misch of reasons). Once again, the Beltway’s ‘behind the scenes’ universe is exerting ominous pull on the visible universe of profound public affairs.

Yeah, fix the Hubble telescope. But let Us look at black-holes a lot closer to home. Let Us look verrrry closely and carefully.


*For a deeper look at all this, see inter alia my Posts here and here from December of 2006.

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