Tuesday, July 06, 2010

CHASE MADAR AND GITMO

The noted New York attorney Chase Madar writes a nifty short piece in the excellent “The American Conservative” magazine: “Obama’s Gitmo”. (‘The American Conservative’, August 2010, pp.18-20; subscription required for online access.)

I think We have reached the point where the old early-Obama era plaint that nobody has given him a chance can be put aside: the gentleman ‘owns’ Af-Pak and has taken over ownership of Gitmo and all the pomps and works of ‘black holes’ and ‘detention’. If there is a Beltway Blutbund – and there is, although the Record-Keeper may not actually be part of the Beltway Band – then Obama has made his bones, paid his dues, and done what was necessary to assure the rest of the Gang that he can be relied upon.

He joins an elite Band – and only they will be surprised to realize that where there is a Record there will be a Reckoning. And from those who have held great authority much will be required.
Boy, is the Beltway in trouble now!

Thank God that the Feminist Revolution has deconstructed all the capital-letter Beings, except those of the female gender – so perhaps Hecate or Athena or the Parcae will make allowances in light of services to the Revolution.

Let’s see how all that turns out as Time goes by.

Madar reports that Obama – presiding over all that ‘concern’ for the ‘children’, especially their ‘safety’ (once they have survived the ‘choice’ test, anyway) from assorted predators and unhappiness – will now be deploying the full faith and force of the United States government and its military justice system (as polite convention calls it) against – wait for it – a 15 year-old.

Well, he was a 15 year-old when he was captured outside Kabul in 2002. He’s 22 now – and if getting your bum pinched by a lewd old priest will, they say, ruin your life, then what do you suppose this kid’s life is going to be like? For seven Biblical years he has been a ‘detainee’ of the Imperium – and has seen the pictures on the honor-wall change from Bush the Egregious and Cheney the Diabolic to Obama the Good Guy and Biden the Bonhomic.

Not that it’s done the kid any good.

He will not have had his life ruined in vain, however. As a special honor to him, the government and military lawyers have (had to) come up with an entirely new charge: “murder in violation of the rules of war”.

Neat. All the repugnance of a murder and the patriotic cachet of ‘war time’.

Although humanity – in the brief moment of Time since it has managed to somehow put limits on the sovereign power of kings and governments to war and to kill ‘legally’ – has never thought it wise or prudent to go charging anybody with murder on a battlefield – where killing is somehow the thing you’re supposed to do. In fact, more soldiers have been shot by their bosses for not-killing than for killing on a battlefield. That’s the way it is in the precincts of War.

But the kid’s not a POW – he’s a ‘detainee’.

More than 600 of “the worst of the worst” at Gitmo (remember that term of opprobrium?) have been re-classified as the Not-So-Bad-of-the-Bad … according to some theological illumination and mode of revelation vouchsafed only to military honchos and their legal staffs.

The 180 or so remaining include Omar Khadr, our kiddo from Canada. I’m guessing that the efforts to help him – from UNICEF and numerous human-rights groups – have actually sealed his fate: the Imperium can’t let him go, since he will have a camera in front of him instantly – and it will have a microphone attached; the Imperium can’t try him because they haven’t got any evidence – except maybe perhaps according to this Murder-on-the-Battlefield charge, but the charge was devised as an actionable offense long after Khadr was taken, so there’s the old Constitutional Ex Post Facto problem.

But then, since when in the past few decades has any “quaint” Constitutional principle slowed down the Right or the Left in the pursuit of their assorted – and oft dove-tailing – agendas?

And there’s the ancient legal wisdom nulla poene sine lege (no punishment without there first being a law against the act) – but THAT’S Latin and that’s so Western and Male and therefore so patriarchal and oppressive and anyway he’s a guy not a ‘woman’ and on top of all that it’s a national emergency and – why not? – throw in a dash of raison d’etat. Oh, and God’s Will – although there is some question of that Entity’s having been Deconstructed … although rumors of His death may have been greatly exaggerated.

Oh, and there’s the problem of ‘torture’ coming up in the trial to explain his initial, since-retracted ‘confession’. The government seems rather avid to avoid having THAT topic come up for examination, perhaps even more now that “24” has had its Series Finale and that ‘groundswell’ of hoohah-for-torture has sorta gone away.

But then Madar gets to a hugely significant problem, one that is a fatal problem not only in Khadr’s case nor in the military-commissions system but in the entire military justice system itself (although Madar for whatever reasons avoids going all the way back to the mother-system): Undue Command Influence.

To understand this problem, you have to understand the difference between Law as it operates in the American Constitutional civilian system, and Law as it has been snipped and sliced to fit into the military system.

In civilian trials and the process leading up to them, there are – far more than in the military – a roster of independent actors: the law, the judge, the prosecutor and the police, the defense counsel, the jury, and toss in the witnesses. While there are numerous informal connections – especially in, say, a small town or jurisdiction – yet the process is designed to work in such a way that the integrity of all the official actors and their dedication to the Truth above all, works to create the ‘adversarial space’ whereby the case for defense and prosecution is presented to the jury under the gimlet-eye of the judge.

Yes, in civilian praxis there has been a great deal of short-cutting and deal-making; but it’s frowned upon and few will admit it, let alone boast about it publicly.

BUT in the civilian adversarial system there is NO organizational requirement – on the most profound and core level of the essence of the enterprise – that requires that one side (and the ‘government’ side at that!) MUST control the process PRECISELY in order to bring about Victory (= conviction of the accused). AND THAT, on top of all that, all of the major actors in the civilian system (judge, cops, prosecutor, jury, most witnesses, AND the defense counsel) are all employees of one of the Parties to the trial.

But in the military legal system there is all of that. And more.

And that Party is not only ‘the government’ as representing the ‘victim’, and not simply the government as proclaiming itself as the ‘victim’ (the defendant has allegedly committed an act which in addition to its own elements also has harmed ‘good order and discipline’ of the forces), but also the government in the person of the Commanding General (Convening Authority) who decided to order the court-martial in the first place.

So the government - in the person of the Commanding Officer/Convening Authority - is at the same time all of the following: the Sovereign upon whose authority the case is conducted; the 'victim' against whom the defendant has allegedly transgressed; and the Employer of ... the judge, the jury, the prosecutors, the investigators and cops, most of the witnesses, and the defense counsel. Oh, and the defendant too.

And since this is a military setting, then if you are a general-officer, and you outrank everybody else in the courtroom (many of whom are under your command)- then the myriad opportunities for you to exert Command Influence on the outcome of the trial can never be reliably squelched.

Because the essence of a military organization is that it is hierarchical: everything revolves under ‘the Command’ which means the Commanding Officer – and that worthy lives in a world where entire staffs and all career subordinates have honed to a nicety the ability to glean – from the merest lift of an eyebrow or the intonation of a voice – exactly what the Boss does or does not want to see happen.*

So then, in every military operation, you know your Boss expects Victory. That is true for every uniformed member, especially the ones close to the Boss, and on the staff – such as Supply, Operations, Intelligence and – you betcha – lawyers.

So then, since a court-martial is something the Boss orders, and is for you the lawyer exactly the type of military operation that is your specialty, then … you know what you have to do.

And for those in the home audience that think nothing could go wrong in this system because “everybody has sworn an oath to do the thing right” … well, there’s a bridge for sale in Brooklyn you might be interested in. **

So Undue Command Influence is a scam on several levels, and it’s built so deeply into the military legal system – arising, in fact, from the very military soil in which the military justice system’s foundations are laid – that very few folks notice the corrosion.

Command Influence is by its nature corruptive, in this system. You know how corrosive it would be if the Governor called the judge in for a chat just before your case was to come up; why would you think it would be any less grievous a crime against true-process for the commanding general to call the judge in for a review of the judge’s performance the night before your trial? Or maybe for a friendly rubber of bridge? What’s the diff?

So the phrase “Undue” Command Influence is just some cheap rhetorical trick by the military lawyers to trick you into assuming that while there is such a BAD thing as “undue” command influenc , yet still command influence itself is a Good Thing.***

To which the only decent response is something South-Central European: something like Hah! Phooey! I spit three times! … Or words to that effect.

And of course, beyond the simple (but lethal) dynamics of military organization and ethos, there’s the problem that arises when higher-ups are pushing even the Commanding Officer, who is also the Convening Authority in your case, to get some usable ‘results’.

So, for example, if this is going to be Dirty Rifle Awareness Month, then the next 5 shlubs to show up with dirty rifles get a court-martial whose results (foreordained) will “send a message”. Ditto if this is, say, Disrespecting Underperforming Recruits Awareness Month: the next 5 to get caught OR even just the first 5 you can make even a halfway believable case against … are going to ‘become a Message’ as the Zen of military convictions would put it.

You can imagine what would happen if you were to take this already loaded system and put it in the service of a strongly-favored Beltway or White House ‘initiative’ – whether it be gender issues or terrorist issues.

And in this case, Madar notes, the Convening Authority was so eager a scout that he didn’t even wait for ‘guidance’ from above (not to say Above); instead he went forth pre-emptively and “proactively” to make sure he had some cases ready that were “sexy”.

Yes, Virginia, even in today’s (multi or trans) gendered military costume-party, you can still want and get “sexy”.

For a brief moment, Madar loses his way in the ever-shifting sands of spin and subsurface reality that is the Gitmo-Military Justice underworld: “One might expect that a legal system thus rigged would greatly appeal to its prosecutors”. Yea, verily. You not only are pretty much guaranteed a ‘win’ every time you go out to the mound, but you also get medals and promotions on top of that – and all for simply not-being a defender. (Not to worry though. In a masterly show of military personnel management, defense counsel get medals too, so long as they lose the case – and that will tide them over until they too are assigned as prosecutors somewhere, and can really dig into the professional steak.)

“Until now, one would have been wrong.” Willy-Tango-Foxtrot?

But where Madar is going with this is that for a few golden years at Gitmo a wondrous thing happened: young military lawyers (the savvy older ones soon enough came to see that the whole thing was a careerist’s minefield) actually stood up for their clients and were willing to ‘go public’ if they had to.

Those young military lawyers – some of whom perhaps helped Madar – are indeed to be congratulated. But their good works will not go un-noticed “een Behrleeeen” as the Gestapo agents used to hiss in the war movies, and their chances of a long and happy military law career are mostly shot. But they have actually been trying to Do the Right Thing … which is rare enough in any military, but even more so in a declining military where the really good seats for musical career chairs are becoming fewer and farther between.

Madar senses that that Moment is passing. The brave spirits who kept the lamp of opposition burning during the Bush-Cheney Imperium, hoping for the day when a more decent power came into its own, have now seen the White House merely photoshop Obama’s head onto the entire monstrous panoply.

Ach.

So Madar is probably right when he sees that “this may spell the end of a golden chapter in JAG history”. Although I would suggest ‘the end of THE golden chapter in JAG history’ … or perhaps ‘the end of the most unusual and impressive chapter in JAG history’.

As I have often said on this site, in the military world there is no Virtue except Victory. With that anything else can be written-in as a Virtue, but without Victory the losers won’t get to write anything.

And anyone who thinks that if you take the military oath and get some rank on your uniform that you are somehow freed from the surly bonds of Original Sin, take a look at the way the Pentagon has been jiggering the casualty counts – with the help of its Doctors and Nurses – in order to make it seem like there are only 50 or 80 thousand casualties from the Greater Southwest Asia Co-Prosperity Sphere, instead of the possible half million.****

Truth – as the 18th century Royal Navy sailor would say – “don’t enter into it”.

NOTES

*In their Long March through the military, the cadres of the Feminist Revolution realized this clearly. Hence while 20 or so years ago the civilian world was bethumped by a myriad of laws and regulations promulgated to prevent workplace harassment and increase workplace hiring, the military was bethumped with regulations that specifically warned against facial expressions, tones of voice, OR EVEN the act of not-speaking when a certain subject or person was brought up … as falling afoul of the new gender-programs. Much as Thomas More found to his undoing in Henry VIII’s ‘great matter’, your silence alone could cost you a career in the gender-crazed pandering of the military since Tailhook.

**This is not a new problem – professionals in the military – but it is increasingly lethal as the Imperium embarks on increasingly frakkulent misadventures. If you are, say, a Doctor – then you have taken the Hippocratic Oath. OK, fine. But what happens when you THEN take the Officer’s Oath in the military …? (Hint: the military can send you to the rockpile for disobedience; Hippocrates doesn’t have that authority … not in this world, anyway.) Ditto chaplains (although the Fundamentalists got around this by proclaiming that since the military was run by the US which was Deputized by God, then any military order is God’s order too). And thus also lawyers – and Lady Justice is as toothless, for all practical purposes, as Hippocrates (although there is that next world ... but Americans are notoriously so dazzled by this one that they have never paid much attention).

***Which is why the military approach is such a favorite of prosecutors in this victim-heavy Age: once the dice are as loaded as the military system, then you can pretty much do whatever you want. And also why the military approach is so attractive not only to the Right, but to the cadres of the Left who consider as 'quaint', 'obstructive' and 're-victimizing' any attempt by the legal system (rules of evidence, statutes of limitation, and such) or by the defendant to somehow slow things down to make sure Truth is discovered. The Revolution is not seeking Truth, but only the Correct Outcome; it already knows the Truth and the legal system and the 'trial' is simply to 'show' everybody the power of the Revolution and to 'send a message'.

****See here and here

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