WAR COMES TO THE MAKERS OF WAR

That phrase comes from the old ‘Victory At Sea’ series. It referred to the American bombing of Japan starting in ’44 as the island airbases within range of the Home Islands became operational.
McClatchy reports that state and national pols from the great state of South Carolina are fixin’ to pass a law that if Guantanamo detainees come to the Charleston Navy Brig, why they’ll shut the electricity off to it (not to the entire Base, mind you, since the Yankee Navy employs a whole passel of red-blooded patriots in town, and the Yankee military is one of the State’s biggest employers).

Charleston, you may recall, fired the opening shots in the Civil War, cannonading Fort Sumter on a fine April morning in 1861 – and with great gusto. It later made a lesser – if less egregious – mark in history when General Sherman, fresh from the capture of Atlanta and his march through the great State of Georgia to Savannah, started making his way up the coast. The good citizens of Charleston had their remaining slaves take all their valuables, good furnishings, good silver and flatware up to Columbia, the State capitol, figuring to outfox ‘Uncle Billy’ and his bhoys, who were no doubt coming now to repay the compliment of 1861 with fire and iron. Alas, the bringer of war – kind of foxy himself – bypassed the makers of war and brought war inland up to Columbia, razing the place – and all the Charleston crockery to boot.

It’s that sort of place. A North Carolinian, in the brouhaha leading up to that terrible War, reflected morosely that his State was “a vale of humility, situated between two humps of pride”, the other hump being Virginia, home to Richmond and now bedroom to the Beltway. What evah is a body to do?

Now comes a sizable delegation of legislators in the matter of the great War on Terrah. Or Terr-er.

Having plumped for the whole thing, having cheered the Patriot Act and the Military Commissions Act and all the other pomps and works for which History is fixin’ to hold somebody responsible, South Carolina is yet again faced with the prospect of a great War ‘coming home’. And again, they don’t much cotton to it. What evah shall they do?

They will legislate and pass a law. No gimlet-eyed stiff, upper lip for them. No sir! To the inkwells! To the touchpads! To the klieg lights! To the South Carolinians, as to their predecessors the Japanese, ‘war ‘ is something that happens to other people.

Nor are they alone. The good citizens of the great State of Kansas, specifically of the County of Leavenworth, situated therein and duly constituted, are equally shocked, shocked, at the thought that their ‘war’ might take up residence. They are home to a lucrative spread of military installations, not the least of which is the Army’s Command and General Staff College at Fort Leavenworth, where the Army goes to learn how to fight and win its wars (the curriculum is yet again in the process of revision, as we speak).

The good burghers also enjoy the employment opportunities afforded by several houses of incarceration within their jurisdiction. There is a county lock-up, a State lock-up, the big and semi-famous Federal lock-up known colloquially as “Leavenworth”, and a private-enterprise lock-up to handle inmates from States whose own zeal for righteousness and justice has overtaxed their brick-and-bar facilities.

And there is the military’s Disciplinary Barracks, a prison for all those caught in the quite possibly unconstitutional toils of the military justice system. That facility, recently moved into a Supermax complex when the old 19th century monstrosity was finally replaced a few years ago, was until 2001 proud of housing ‘the worst of the worst’, such as pudgy, soft-fingered Air Force Master Sergeants who, being ‘military’, were more dangerous than any other criminal in the country because ‘they knew how to use guns’. The thought of such personnel posing more of a danger than any 1st-year gang member can only bring a rueful smile to those who are familiar with military hyperbole, which to the military mind is almost indistinguishable from truth. Which is a trait the military now shares with the polarized Right and Left in the country.

But now, suddenly, the hapless inmates at the United States Disciplinary Barracks (its formal title) are demoted to just hapless-inmates; the ‘worst of the worst’ have suddenly been discovered to be a motley of teens, wandering Uighurs, and various bearded folk from what were supposed to remain far-distant battlefields – or, at least, ‘theaters of operation’.

Having demonstrated that it is utterly unable and unwilling to have to defend its actions in any civilian court, and faced with an increasingly restive military lawyer corps that is beginning to get fits of the vapours from thinking far too much about ‘abstractions’ and ‘concepts’ such as ‘Nuremberg’ and ‘war crimes’, the jailors are now in a quandary: How do you let go of a wolf you have not only trapped and shackled but have grabbed by the ears? How back away now? And who’s going to take the wolf off your hands and ‘home to their place’? Without your own pretty face getting bitten off in the process?

But if there’s one thing America has in abundance after 40 years of Left and Right demonizations, it’s prisons. And that’s why now the burghers and solons of these prison locales are looking out and up with about the same mixture of surprise, apprehension, and irritated confoundment as the Tokyo denizens who looked up to see Billy Mitchell’s B-25s coming in over the rooftops: This – is happening – to us? Do they know who we are? And the classic whine: Why usssss?

Suddenly the good patriotic folk are thinking of States’ rights and the heartless intrusions of a ‘fedril gummint’ which they had heretofore known only as a friendly and reliable cash-cow, delivering paychecks and subsidies with an inspiring regularity; an affable donkey, a mule faithfully schlepping the bounty of the public till to those shrewd enough to have gotten on the ‘good’ list.

Yea, these be strange times, and We shall see strange things.

In what has to be construed as a definitive proof of the existence of a God Who Laughs to Scorn, well-coiffed and well-shod solons known for their jingo, macho, kill-em-all-and-let-God-sort-it-out support of the frakkery on the Eastern Front are now buzzing about like overstuffed bees, essaying a stentorian bray to the effect that nobody is going to bring the war into their back yard. Harrrrrrumph!

It’s one thing to have a bunch of chained unfortunates safely warehoused in this or that well-walled facility, where their years of rot and vegetation can be made to manure the rich pastures of local emolument, and where their bedraggled and dispirited and disoriented families can come to visit and have to spread some cash at the local strip-malls and fleabags. It’s another thing to have folks who – if the stories about them be true – are connected to distant, very unhappy, and very resourceful associates and relatives, who might themselves decide to pay a visit.

And who knows whether such stories about them are indeed true? The fog of war, alas. The thing that gets kids in uniform killed and generals given a free pass to come up with further nebulous theories about the properties and dynamics of fog. But always over there. Somewhere. Somewhere else.

Curiously, in the august halls of the Senate, the execrable Lindsey Graham (R-S.C.) is not one of the pack, allowing his stable-mate, Jim DeMint (R-S.C.) to do that thing with the snorting and the stamping of the hooves and the flaring of wide nostrils and the shaking of antlers, horns, or large floppy ears.

And thereby hangs Graham’s tale, as it were. He is up to his own floppy ears in the equally execrable military justice system, being a general in its Reserve and a former Judge on what must be formally termed, and with a straight face, its ‘appeals’ court. The military’s attorneys, now combining the famous characteristics of that trade with all the worst elements of the professionals-in-the-military conundrum, are – as said previously – thinking very much of ‘Nuremberg’ and ‘war crimes’. And not in the abstract, but as something that may yet happen … to them.

With a few honorable exceptions who are trying to actually defend their clients, the JAGs are most solicitous of supporting this President as they were the prior specimen. And therefore at this point they would very much like someone to take the ‘wolves’ off their hands. The less the JAGs are seen near these folks, the less chance that people might start wondering just what the JAGs’ role has been in this whole dark and unholy mess. I’m waiting for DVD copies of ‘Judgment at Nuremberg’ to start disappearing from shelves and catalogs in the name of ‘national security’; my bet is that they have not been available at military PX’s and Exchanges for quite some time.

The war, if not yet Nuremberg, is coming home.

It is becoming repugnant, what is happening now. Although the war has been coming home in the form of dead and wrecked veterans for years, only now, and for this, are the pols rising up on their hind legs.

The dead can be buried. The wounded can be clucked ruefully about over coffee at the local diner. But the ‘enemy’, now the ‘enemy’ is coming. What do you do with them? What do you do with what you have done to them?

In a way, it’s like the national undercurrent of unfocused concern over what to do with the more-than-Soviet percentages of imprisoned citizens now starting to ‘come back’ into ‘polite society’? You can’t – yet, anyway – ‘civilly confine’ all of them because of what they ‘might do’. What now then?

There’s something of Cavafy in all of this, in all of this bustling and braying. But he saw, as We must sooner or later come to see, that “the barbarians were, somehow, a solution”. A solution to a vast national failure – not in war, but deeper than that.

Much, much deeper.

ADDENDUM

Daniel Nasaw reports that this has now broadened to a wider Republican Congressional groundswell.

GETTING DETENTION

In ‘The Boston Review’ for January-February, 2009, David Cole has an article in which he seeks to address the problem of preventive detention, which the closing of Guantanamo will only bring to the fore.

He’s always a worthwhile read, but this is a hugely fraught subject.

Once Guantanamo has been closed, what do We do with the folks who can’t be sent back home, either because of dangers on that end, or because the US government thinks that they are still too dangerous to have on the loose?

Human rights advocates simply want them turned loose unless they can be tried in a civilian criminal court and found guilty of whatever charge is brought against them. On the other end of the spectrum, some law professors (including Jack Goldsmith, formerly of the Bushist Imperium, now of Harvard) claim that the “threat of terrorism” is so great that “a sweeping new detention authority” is required and that therefore Congress should grant the President the authority to indefinitely detain any suspected terrorist.

I’m not really happy with the idea of granting sweeping new authority to any entity within the Beltway. The Executive and the Congress have both proven themselves hugely unreliable in just about every area in the past 8 years (just to keep things manageable): military operations, civil rights and liberties, the faithful execution of the laws … not a good track record, not even after the elections of 2006. A whole bunch of folks who are presently engaged in trying to prevent investigation into their recent activities or that of their friends and their relations now want – if you please – “sweeping new detention authority”?

Does Congress even have such authority? It delegated its power over the currency to the Federal Reserve in 1913 and the power to conduct criminal process to the Executive (in the form of military justice) in 1916, and there is weighty probability that it had the authority to do neither; certainly, We have not seen much benefit from the clubby and arcane finagling of the Federal Reserve, and the military system is so clearly ‘unreliable’ for the administration of justice that Cole doesn’t even want to leave his own detention plan up to the JAGs.

Cole proposes a third way, both to deal with the detainees We already have and to establish a policy on future detainees. He wants them detained, but only after careful civilian court review. It’s interesting. But first there’s the problem of figuring out whether individuals can be detained in the current Global War on Terror (or whatever it’s labeled nowadays) at all.

Here’s where it gets very thorny. Proponents of any detention have to establish just what allows anybody to be detained. Unless you simply say that the government and the military can do what they want to do anytime they want to do it ‘just because’ … then you have to explain what it is that justifies depriving people of their liberty.

Almost immediately, folks will say that We have always had the right to detain enemy soldiers or even agents in wartime. Which is true.

But We are not actually in a war. Congress has not declared it; Cole says that “al Qaeda declared war on us”, but it’s not a sovereign nation, has no uniformed military, and so the question arises: Do We – can We? – consider Ourselves at war any time some bunch ‘declares war’ on Us? This was the whole plot of ‘The Mouse That Roared’ some decades ago: a small, impoverished, story-book land decided that the only way to improve its finances was to declare war on the United States, surrender immediately, and apply for foreign aid. The problem? The country was so insignificant that the US refused to consider itself at war and wouldn’t even accept the declaration.

Yes, the UN and NATO both authorized a US military response to 9-11, but that was for Afghanistan, which the virtuosi of the Beltway won and then lost. But the attack on an Iraq that had nothing to do with al-Qaeda at all was not covered by that. The Congressional Authorization To Use Military Force was not a declaration of war (Upon what embassy would it be served? Against what flag and what uniform would the US military conduct operations?). So to talk about what was done with enemy troops in this or that war, how they were detained without trial (as POWs) or – in the case of spies and saboteurs – tried and executed, is not relevant as a justification. It’s queasily similar to the current US military vaudeville of defending its justice system by pointing out that armies have been court-martialling soldiers for centuries, and the Brits did it long before the Revolution. Which shrewdly slides by the fact that while armies have been court-martialling for offenses against the Articles of War for centuries, no armies have ever conducted criminal process as if its court-martial were a ‘real’ court. Not until the Pentagon caught Stalin’s show-trial act and realized that it was the perfect template for their purposes.

Cole slips too easily to the next step: asserting that the only problem with detention of ‘enemy combatants’ is that they were denied fair hearings, “resulting in the detention of many who were not enemy fighters”. He’s right about the fair hearings, but I can’t see how the “enemy fighters” point has been established. They may well be criminals if they’ve come over here,so We should put a couple dozen billion into Interpol and local police (or, say, the price of one month of the war costs in Iraq), but I can’t see how folks shooting ‘over there’ are ‘the enemy’ in the sense that the British, the Mexicans, the Confederates, the Spanish, the Germans, the Japanese, the Italians, the Turks or –hell – even the Russians were at one time or another ‘the enemy’.

In fact, at this point, I think it could be said that almost none of them would have been shooting at US soldiers if US soldiers hadn’t done them the favor of – you should pardon the expression – bringing the mountain to Mohammed; i.e. if US troops weren’t ‘over there’ in the first place.
And how now to distinguish between those who were fighting US troops on the one hand because – say – the troops were hindering them from coming to America and blowing stuff up and, on the other hand, those who simply don’t want foreign troops in their country, or are enraged at the bungling or callously inflicted deaths that have accompanied US operations at every turn … ? Having gone over to somebody’s country, invaded it, and started shooting it up, can We now with any pretense of justice, decency, or even simple rationality claim that anyone who shoots back from his own front yard is a ‘terrorist’?

And if his simple act of shooting at invaders and occupiers in his own land makes him an ‘enemy combatant’ then that’s not a particularly revealing classification. And on top of that, We should look a lot more carefully at the type of ‘military operations’, Congressionally authorized or what-have-you, that create such ‘combatants’.

This is too clever by half, changing terms from ‘terrorist’ to ‘combatant’. He’s fighting against an army invading his country, though he’s not part of any national army. That makes him a ‘combatant’, but not a ‘terrorist’. And since neither he nor his country declared war on Us, but rather Our troops invaded his country, then We have a serious problem in philosophy, in justice, and – for the more literally-minded – a problem in foreign relations: these people, generations of them, now go through their days thinking of Us the way Poles and French and Greek thought about the Germans. They realize that they have not invaded Us, yet We have most surely invaded them.

The fact that Our PR units call it ‘assistance’ or ‘liberation’ or ‘the Greater Southwest Asia Co-Prosperity Sphere’ or whatever … don’t amount to a hill of beans in this world. And putting the heavy weapons aside for a minute to show Afghanis pictures of the Two Towers when they know damned well that it was a bunch of Saudis (Saudis! The very foreign nationals we did not detain after 9-11, and even allowed to fly home forthwith) who did that … do We think these people are idiots? I am going to imagine not a few of them think We are.

We seem to have created a lot of armed ‘terrorists’ – or at least ‘combatants’ - over there by invading countries in order to do whatever it is that We were going to do to armed terrorists that were found there. This is – to use Andrew Bacevich’s fine phrase – a ‘self-licking ice cream cone’. We seem to be in a deadly arm-wrestle with Our own sock puppet.

What came over here for 9-11 was an Ocean’s Eleven, a bunch that got through thanks to the incomprehensible bungling of the FBI and other agencies, while Bush fiddled on his Palatine and went forth to read fairy-tales about goatlings to kiddies.

Of course, if the argument is to be made that the US cannot treat this as a ‘crime’ because the world’s other police agencies aren’t competent enough or don’t want to work on the US concerns, well that’s a problem soooo big that We are in a heap of even bigger trouble than any ‘terrorists’ can cook up.

Cole admits candidly that “there are many reasons to be skeptical of preventive detention … we have not done preventive detention well”. He offers the examples of the Palmer raids, the internment of Nisei and Issei on the West Coast during World War Two, and the detention of foreign nationals here after 9-11 (the Saudis ludicrously and disastrously excepted).

He could add the on-going national experience with ‘sex offenders’, since ‘civil commitment’ has now become a cover for preventive detention of whomever the authorities ‘think’ would do something in the future; nor have the courts largely distinguished themselves in this area. But if that is going badly, and for many of the same reasons as this ‘terrorist’ preventive detention, then there are hardly grounds for presuming (or even hoping) that courts will deal any better with accused ‘terrorists’ – unless one imagines that ‘sex offenders’ are worse than ‘terrorists’ so it can be expected that the ‘terrorist’ will get a fairer shake because they don’t pose so much of a threat to public safety or because ‘terrorism’ isn’t as heinous as sex-offenses. Now that’s a thought-provoking exercise in symbolism and enforcement.

Cole quotes a report by Human Rights First, conducted by two former prosecutors, that “shows that the criminal justice system has proven capable of incapacitating, trying, and convicting terrorists before and after 9-11”. He goes on that “terrorism is a serious crime, but just like other serious crimes, it can and should be addressed through the criminal justice system”. Which makes very good sense as far as I can see. And ignoring that very insight has resulted in military, diplomatic, fiscal, and moral debacle on a scale that dwarfs even Vietnam.

But then he proceeds without further comment to his next paragraph that it’s still necessary to come up with a way of “addressing serious and legitimate security concerns without the overkill of a general system of preventive detention for suspected terrorists”. Again, does this thought presume that everybody over there caught shooting – if even that – at US troops is a ‘terrorist’ who would, absent the troops shooting at him, be on a flight or a slow boat to the East Coast in the morning? Are there tens of thousands of Mohammed Attas over there, who would already have been here if they weren’t pinned down by helicopter gunships and their front door being blown in? Or thousands? Or hundreds? Or dozens?

Just how many Attas is it for which We have deployed and degraded most of the Army and Marine Corps, troops and equipment, body and spirit? And if it isn’t just Attas, but sort of anybody, or at least anybody who can pick up a gun and shoot at foreign troops in his own country … then what the hell have We gone and done? What are We doing here? … as the song went forty years ago.

Thus to answer his own problem he asserts bravely that there must be some sort of preventive detention, “but only for detainees identified as fighters in an ongoing military conflict”. But this is circular. If they are fighting in their own country against US troops simply because they don’t want US troops in their own country, then are they ‘terrorists’? – by which I mean folks who have dedicated themselves with malice aforethought to causing as much physical and material damage to American persons as possible, especially on American soil.

Or, worse: if they never entertained such thoughts, until they saw US troops in their country do X or kill Y … then to call them ‘terrorists’ is to descend into a veritable hell of lethal moral and classificatory complexity, which can kill a soul no matter how much body armor it’s wearing or how well protected a vehicle it is riding in. Do We really want to go down that road? Or go any further down it?

Again, Cole relies on the ‘traditional war’ analogy: why should an Italian soldier, a POW in this country, expect to go home before the war is over? And if he can’t, then why should an “unprivileged belligerent” expect any better treatment? This is verging on sophistry. The Italian soldier is in a traditional war situation as a POW; the “unprivileged belligerent” may well be a person shooting at invaders while in his own country – he was engaged in no ‘war’, he was just defending his land and would stop when the invaders left.

And the Italian knew he would go home when his country surrendered and the hostilities were declared ove; a Leader would eventually surrender and that would be that. But what the frak do you do when there is no Fuhrer, no Duce, no Emperor, no ‘enemy authority’ to declare ‘surrender’? Who then says when it’s over? The ones who – in the present case – invaded in the first place? Who invaded because they intended to stamp out ‘terrorism’, which is as endless a task as stamping out sex or sin? At this rate, We shall be fighting ‘terrorists’ for as long as feminists will be complaining about ‘maleness’, which could be until Gabriel blows the Last Whistle.

And does this “unprivileged belligerent” wait until the Last Trumpet to go home? Will that Last Trumpet be the sign that the ‘war’ is over? Won? There can be no ‘surrender’ so the war cannot end and a war without end is not a ‘war’ in any sense known to Western law and diplomacy. A war without end is known only to Fundamentalists and Second Wave Feminists, now that the Commies have given up on their version of World Revolution. This starts to shade into a grotesque burlesque of law and reason and everything that has distinguished civilization.

So to compare the Italian soldier to the “unprivileged belligerent” is to compare apples and oranges. And to then for all practical purposes condemn the orange to life-imprisonment on the basis of such a faulty comparison … like I said, ‘sophistry’ is only the polite term for this sort of thing.

But Cole had gotten into the Italian-“unprivileged belligerent” thing in the first place as the result of a whole sequence of what-ifs: suppose the government has ‘clear and convincing’ evidence that an individual “was captured while actively engaged in armed conflict on behalf of al-Qaeda”, and suppose that the individual “had boasted that he would return to the struggle if released”, and suppose that “the government is unable to convince a jury – civilian or military – that the individual is guilty beyond a reasonable doubt of a specific crime”. Must then the government let him go?

Hitler, faced with a similar problem in jurisprudential praxis, simply enacted the Nacht und Nebel law, Night and Fog: if you were found innocent by the courts and the Reich still wanted you in jail, then the Gestapo or the SS could arrest you forthwith with no explanations required. Many a defendant, now released, would find a black van (the SUV of the day) at the foot of the courthouse steps, and that would be the last daylight he’d ever see.

But I won’t consider the ‘Hitler’ gambit a trump. Distinguishing between somebody shooting ‘on behalf of’ al-Qaeda and somebody shooting in order to rid his land of foreign invaders … how do you do that? And if he’s shooting just to get Us – the invaders – off his property, then on what legal and moral grounds can he be ‘detained’?

The point about not being able to convince a military jury pretty much invades the precincts of science fiction. Military juries will find what they are told to find – or they will find themselves in a very unhappy place soon thereafter; that’s what makes the military the military.

But if the evidence is ‘clear and convincing’ and yet it doesn’t convince a civilian jury, then just how ‘clear and convincing’ was it? This is a terrorism case, after all, and you don’t have to worry about a whole lot of sympathy for the defendant. So if a civilian jury doesn’t find against him, then that in itself raises a pretty big flag.

And I wouldn’t be worried about the guy who boasted he’d go back to fighting if he ever got out. I’d worry about the guys who had made up their minds to do so but had the skill and wit to hide that from their captors, for whom they never caused any trouble. But then too, some prisoners don’t cause you any trouble just because they aren’t the troublesome sort. You never can be sure.

But the fact that We invaded Iraq, and got Ourselves into this unholy mess of ‘reading minds’ and imagining the future and so forth (why not a Tea-Leaf battalion or an Astrology Squad?) doesn’t then give Us the right to insist that since it’s impossible to do what We thought would be easy, then We have to be given some leeway because it’s all so hard for Us. You start getting into this type of frakfest, and then especially if you are witless and unskilled enough to lose, you are going to wind up taking a lot of verrrry complicated ‘prisoners’. And at that point, barring the success of the Tea Leaves, you either let them go and abide by the rules of law and reason, or you cut loose from the rule of law and reason and just start shooting or locking up everybody you can get your hands or your sights on. That won’t end well.

It has been proposed by one judge that a person could be legally considered an enemy combatant if he were a member of an organization against which Congress has authorized the use of military force: but after what I’ve been seeing for some years now, I don’t feel real confident about Congress being a reliable steward of the authority to make such ‘declarations’.

Of course, reliable stewardship is technically not necessary: whatever Congress declares (no matter how little homework it has done in the matter) then that becomes the law; look at the Patriot Act.

And a “military conflict” could mean the guy in his hometown or province shooting at invading occupiers, who never had a thought about traveling to this country in order to blow up bridges (which are starting to fall down on their own anyway). If We are going to start shooting and detaining folks because they are resisting Our invasion of their own country, then Our Wehrmacht-style helmets are going to be saying wayyyyy much more than We want them to.

It seems to me that if a guy is shooting at US troops because they’re over in his part of the world, then he’s not a terrorist the way 9-11 got Us thinking about terrorists. But the guy who’s shooting at US troops because it saves him the trip he was going to have to make to the East Coast … well, OK, that is a terrorist. But how the frak do you tell the difference?

So Cole’s basically saying that although ‘traditional war’ is not really an accurate analogy, we need this ‘preventive detention’ anyway so we’ll have to come up with some sort of procedures and criteria. It is to his credit that he realizes that the military has demonstrated its inability to do the adjudication chores, and thus he insists on civilian courts determining whether or not an individual is legitimately a candidate for detention.

But this is still a very interesting frosting with no cake. Whether the US government or any government has the authority – or can give itself the authority – to preventively detain ‘combatants’ outside of a declared war and outside of the civilian criminal court system is still a large question.

Whether it is wise for a government to get itself into the situation where it has to rely on ‘tea leaves’ is another question. Domestic US developments in the matters of governmental discernment of the thoughts and predispositions of this or that individual, evinced with disquieting frequency in the trial of certain types of crimes, has now spilled over into the realm of foreign and military policy. And thus We have infected Ourselves with a lethal complication.

Whether it is wise for the US government to have gotten itself into this quandary, when all the other countries of the West that have been hit by terror attacks have precisely not responded with military force and invasive occupations of foreign territory, is a large question.

Whether it is useful for the US government to be making-legal here what still may be a war-crime in another venue (and with war-crimes, the whole world is the venue), is yet another question that should give everybody pause. It may work in domestic politics for Congress to get itself off all the hooks by not-prosecuting any crimes here – but if any of these characters tries to go abroad, he (or she) may wind up in cuffs.

And what if – on the grounds of war crimes or crimes against humanity – some group ‘pulls an Eichmann’ by coming here and spiriting the notorious but un-charged offender away to a venue where he very much will be tried? We approved – and got the rest of the major nations to accept – the Israeli assault on Argentina’s sovereignty by kidnapping Eichmann in 1960 and hauling him back to Israeli courts. Suppose somebody tries to pull that against some American functionary who was instrumental in the Iraq invasion, war, and occupation? If the functionary is ‘vacationing’ in a foreign venue? History ain’t dead yet, sportsfans.

Nor am I encouraged with Cole’s too-convenient confusion in referring at one point to al-Qaeda’s “criminal warfare”. The whole nub of the matter here is exactly whether al-Qaeda’s actions are ‘acts of war’ that should be met with a military response, or ‘criminal acts’ that should be met with a police response.

And a “military conflict” could simply mean that Congress has authorized the military to start shooting, which may have nothing whatsoever to do with ‘terrorism’ and which may thus ‘justify’ the detention of a whole bunch of folks who just don’t like being invaded and occupied – a sentiment which puts them in solid affinity with the residents of all the US states that begin with “I” and certainly those that begin with “U”. So the phrase is far too broad for what started out as an effort to prevent more Mohammed-Atta-&-Co. strike teams from coming over here and wreaking their havoc.

And finally, saying that a detainee is only going to be detained until ‘hostilities’ are over, when you’ve already admitted that such ‘hostilities’ could go on for years and years, and when you’ve acknowledged that there is no clear way to know when they are ‘over’, whenever that may be … is for all practical purposes to describe a detention that is sempiternal and certainly will be a life-sentence for all but a young detainee. This too is too broad and vague a definition, and will provide, as do the civil-commitment laws as they are now being slyly and deceitfully employed against sex-offenders, merely a back-door route to life-imprisonment for “inconvenient” individuals.

And to anybody tempted to say So What, let it be remembered that the fate of these foreigners will be recalled by their countrymen and We are no longer in a position as a member of the community of nations – no longer the Unitary Hegemon – such that We can cockily ignore or neglect “a decent respect for the opinion of mankind”.

Those days are gone, baby, gone.

BAD TURKEYS BREED MORE

David Fathi at Human Rights Watch notes that there are those who are now suggesting that ‘preventive detention’ might be a fine option for Obama if he wants to close Guantanamo but the government doesn’t’ ‘prefer’ to bring charges against those whom it also doesn’t want to release.

This is a classic example of a very bad thing.

Not just because the whole idea of letting the government use its vast police power to simply put people away with no submission to judicial review is profoundly - how would they have put it half a century ago? – un-American; not just because it flies in the face of the Founders’ clear and abiding concern to prevent a ‘monarchical’ or ‘tyrannical’ government power (though Darth Cheney precisely and publicly thinks that ‘monarchical’ power is exactly what the Executive should have and – when push comes to arrest – already does have; not just because it continues a government engorgement of military-type powers that took a huge step into our modern American reality when Congress ‘delegated’ to the military the power to prosecute the criminal code without the safeguards specifically placed in the Constitution.

Not just because of all that.

But because We are now bethumpt by a bad and badly flawed policy allowed to take root in domestic law now migrating into foreign policy and expanding into far broader areas of fundamental American legal practice and constitutional theory. The initial ‘bad’ policy is now being touted by the ‘preventive detention’ gang as ‘proof’ that such detention is OK and that since it’s already ‘working’ in one area of American law, then it ‘ain’t but a thang’. Not hardly.

As Fathi notes, the detainers are pointing to the – here we go again – sex offender laws, where those convicted of any of a broad spectrum of ‘sex offense’ (and not at all simply against ‘the children’) can be confined once they have finished their prison sentences.

This has been effected – and upheld by the Supreme Court, thank ya vurrry mutch – through a ‘creative’ use of the long-standing practice of ‘civil commitment’: if through some sort of mental problem one constitutes a danger to oneself or others, then one can, upon judicial finding, be confined to a secure facility for treatment until one no longer constitutes such a danger.

Of course, the civil commitment laws were for persons with clearly distinguishable mental difficulties, and in the cases of accused criminal activity such commitment would function in lieu of imprisonment.

State pols, always looking for a way to look like they’re on the job, decided that it wasn’t enough to convict (even with the deeply eroded jurispraxis safeguards now in place for ‘sex offense’ trials) and imprison an individual; they wanted to come up with a way to keep that person ‘off the streets’ more or less permanently. They hit upon the ‘civil commitment’ gambit.

There are some major problems. Contrary to civil-commitment praxis, the targeted individual is not committed in lieu of imprisonment, but on top of it. That may sound suspiciously like ‘double jeopardy’, being punished twice on the basis of the same conviction, but the Supreme Court, in a marvelously ‘creative’ moment, embraced the ‘legal fiction’ that such commitment is not ‘punitive’, but merely ‘therapeutic’ – it’s not to punish the individual, but to ‘get him (almost always a ‘him’) the help he needs’. How nice. Except that since there is no ‘sex offender’ diagnosis recognized by the national psychiatric establishments, there can be – and is – no ‘therapy’ and no ‘cure’. Somehow that clear fact escaped the Court’s attention; and such an untruth, introduced into such a grave arena as the deprivation of liberty did not seem to the Robes a matter of any consequence. It gives a whole new spin to the term ‘judicial activism’ – the judicial Branch is actively embracing illusions and untruth. This is called ‘reform’ and ‘progress’.

But anyway, a majority of the Court opines, it’s all for ‘public safety’, so even if it is, well it isn’t - as it were. Even if it’s not a validly grounded policy, it’s important for ‘public safety’, sort of a domestic version of the ‘national security’ justification that has been deployed to further torture, preventive war, and the preventive detention of numerous ‘detainees’.

And like Bush v. Gore, the Court’s majority would like Us to just accept what they say and ‘get over it’ and ‘move on’. Yah. We accepted Bush, moved on, and that was 8 stupendously bad years ago. Are you feeling the ‘good idea’ in that?

But there are more impossible things to digest before your breakfast. In order to get over the stubborn fact (in Ronald Reagan’s nicely-put phrasing) that there isn’t any medical or psychiatric diagnosis for ‘sex offense’ – in other words, it doesn’t exist as a psychiatric affliction, nor – as afore-mentioned – is there a ‘therapy’ let alone a ‘cure’, the Court opined that state legislators can say what is and isn’t a psychiatric problem, regardless of what the psychiatrists say. Although it would seem that any state legislator who opened a side-business as a psychiatric therapist would still be guilty of practicing psychiatry without a license – but no matter.

Still more: a targeted individual need not display a ‘classic’ psychiatric syndrome like – say – paranoid schizophrenia or psychotic delusions or such clear and obvious insanity. No – the individual might simply ‘have’ a ‘mental abnormality’, including – say – a Personality Disorder. Now, it’s professionally understood that any given point a majority of the population can qualify for a ‘PDO” diagnosis; in almost all cases the therapy is some mixture of ‘talk therapy’ and a mild psychiatric drug, preferably more of the former than the latter.

The chances of anybody, especially after a stint – perhaps of many years – in a state prison, having a bit of a PDO, even if they didn’t have one going into the institution, are pretty good. And if one isn’t of a criminal disposition to begin with, and doesn’t yield himself to the temptation during his sojurn in that netherworld, then the chances are even better that he’s going to pay for such integrity with a bit of personality deformity simply from the sustained stress of not allowing himself to sink into the morass of dysfunction that constitutes ‘normal’ life in the prison setting. Especially if one is labeled, as is de rigeur in these matters, as a ‘sex offender’.

So much the easier will be the task of civilly confining the gentleman when and if he survives his imprisonment. Charming.

Thus We come to the ‘preventive’ part: it’s all OK because the state is simply trying to ‘prevent’ sex-offenders from committing any more ‘sex offenses’. In other words, although there is no professionally acknowledged psychiatric disease, and although the individual has committed no new offenses (kindly do not imagine that there is no opportunity to commit ‘sex offenses’ in the prison setting), the state – saith the Court – is justified in ‘preventing’ any further offenses that the individual may commit.

Nor does a majority of the Court consider it relevant that the government’s own figures indicate that ‘sex offenders’ have one of the lowest recidivism rates among all convicts.

It would appear that having ‘created’ the ‘monster’ called the ‘sex offender’ (and recall that this category is primarily composed of individuals who have had nothing to do with ‘children’) the state pols now can’t let the so-called ‘monsters’ back out into society, to walk free in liberty. It’s an interesting question whether the pols themselves understand that they have painted themselves into a dangerous corner or whether it has occurred to them that they have created a ‘class’ of ‘evil-doers’ who can serve state purposes as well as the ‘Islamo-fascists’ serve the purposes of the national legislature and the national Executive. In either case, the pols have got themselves what Pentagon-types refer to with no small admiration as a ‘self-licking ice cream cone’ – it continually feeds upon itself and will keep on doing so, being constantly (and magically) replenished by the fears of the populace, stoked by the original ‘monsterizing’ of the original offender. Neat.

So We are not out of line by wondering if this whole thing is really a good idea; if it isn’t rather a really bad idea that has opened very crucial holes in the protective watertight walls that keep the Ship of the Republic afloat.

Which brings Us back to Mr. Fathi’s observations, since supporters of the national government’s ‘preventive detention’ plan are now pointing to the domestic sex-offender policy to justify what they want to do with all of the souls currently caged in the service of the Global War On Terror (or whatever the Beltway is calling it today). So the existence of a bad policy is now being used as a justification for the deployment of that policy in yet another arena of national concern. Since Ford made the Edsel and the things are on the road, now the Pentagon wants to make a military version of it – that sort of thing.

You could be forgiven for imagining that when this new domestic military command is finally ready for some action, the public will be told that the troops are being sent forth to assist the police in capturing the hordes of ‘sex offenders’ who are on the loose. And for imagining that far too many folks will simply say ‘Oh, well, that’s OK then’ and turn back to more pressing concerns (of which We have more than a few nowadays). Thus with an ‘OK then’ will the Republic sink.

And We will come more and more to resemble the German citizenry in ’45: can’t think how it all happened, thought it was a really good thing for the country, seemed the thing to do at the time, can’t imagine how it all went so wrong, just want to forget it. But History has a way of not letting folks ‘forget’, if by ‘forgetting’ you mean ‘walk away from the consequences’. History has its own forms of ‘backlash’, called ‘blowback’ in military circles. In Our case, the sustained breaching of Our fundamental Constitutional praxis, by a citizenry that has forgotten what it means to be The People, will result in the loss of the Constitutional ethos itself. And like MacArthur’s ‘old soldier’, it will not do Us the service of collapsing spectacularly but will rather ‘just fade away’, starved of vital support by the ‘forgetfulness’ of too many who just went with the flow and told themselves it was the right thing to do.

Like the classic emergency-room ‘train-wreck’, Our Constitutional ethos is now suffering from bad ideas that are feeding upon each other, metastasizing by using each other as ‘proof’ that ‘one more’ expansion won’t ‘hurt’ and will actually be a good thing. When you get this sort of synergy in a patient with serious injuries, then it’s time to call the chaplain or cut to a commercial – because what follows won’t be pretty for home-viewing. Except for those who are fascinated by watching somebody else die.

But what’s dying here is no ‘stranger’. It’s Our own American way of ordering and deploying governmental authority. Which is to say: carefully, and with a whole lotta serious thought.

Governments are potentially dangerous things, even when they mean well, let alone when they have – like a pit bull – gone a bit off. And un-Truth is a proven enemy of all that is best in humankind.

Put ‘government’ and ‘un-Truth’ together, take them off the leash of The People’s careful , thoughtful, and sustained scrutiny, and that’s a recipe for lethal ‘mischief’, fatal to a republic, and certainly to this Republic.

I’ve mentioned it before but I’ll say it again: the 20th century saw the West wrestle with the huge challenges of controlling industrial centralization. In this country, Teddy Roosevelt joined with the Progressives in expanding the role of government to counter the huge new industrial and corporate combinations. That alone meant that – since the government was getting wayyyyy bigger and more powerful – then The People had to become more and not less capable of grounding the great Ferris-wheel of Constitutional government.

But at just that moment the Progressives slid into a form of the old American fear that ‘people’ couldn’t be trusted to be ‘The People’ and actually needed to be ridden-herd-upon by those who knew what had to be done. The late 18th century gentlefolk who wanted to keep actual power in the hands of those who were landed and thus responsible to run the affairs of the Republic, were succeeded at the beginning of the 20th by the Progressives, who felt that it was their patriotic mission civilisatrice to raise up and educate the wracked individual souls of the urban masses. But when Wilson and his war came along, this expanded into a Progressive urge to administer the government as a scientifically educated, knowledge elite, in a far more potent replay of the late-18th century landed gentry.

And then came the New Deal, and then the postwar Cold War ‘National Security State’, where the ‘Progressive’ urge to shepherd the great unwashed masses blended without too much trouble into the National Security State’s elites who would instill a useful ‘fear’ into the population and captain the Ship of the Republic into the deep, heavy, ambiguous seas of world-power.

If We consider the vanguard elites of the assorted Advocacies and Identities of the late-Sixties and early-Seventies as blending the excited but optimistic perturbations of the Progressive elites with the revolutionary-tinged, youthfully ruthless enthusiasms of ‘we are the only ones who get it’ cadres, then it’s not so hard to see that the role of The People in this Republic has been under serious if not clearly perceived assault for a century. The recent and reprehensible Unitary Executive, while it has furthered the damage to the role of The People, was enabled by a long process of the disempowerment of The People.

Somehow, and time’s running out, We have to figure out a way to run a complex nation without extinguishing the utterly vital role of The People. So far neither the historical Progressives, nor the assorted ‘elites’ of the New Deal and then the National Security State, nor the ‘Conservatives’ (really now Nationalist-Rightists), nor the congeries of assorted Identity-Advocacy ‘elites’ who have recently re-named themselves Progressive since they have utterly bankrupted the term ‘liberal’, have gotten this task right.

Mr. Obama faces a task greater than Lincoln, and yet it’s very much similar in a way to the Great Challenge that abides always at the heart of the American Dream: to trust that ‘people’ can also constitute The People.

And if he’s going to achieve that, he’s going to need the support of a whole lotta ‘people’ who must demonstrate, individually and communally, that they can indeed be The People, and insist upon exercising that profound Calling.

Embracing ‘preventive detention’ is not going to help matters at all.

NOTES

The Supreme Court case to start with is 'Kansas v. Hendricks'.

VICTIMIZING

I have from time to time talked about Victimism and ‘Victims’ as an ‘Identity’, a particular, identifiable ‘group’ whose ‘voice’ must be heard and demands acceded to, and as an Identity so defined, then metastasized to a Level III or IV ‘Advocacy’ the well-arranged purpose of which is not to ‘inform’ or ‘persuade’ public debate but rather to manhandle public opinion in order to ram through changes in law or jurisprudence with no debate. Identities passed the Norman Rockwell ‘speaking out’ phase a long time ago; blew through it, actually, on their way to major agitprop assault operations.

Actually, Victimism is a sort of second-tier Identity. All ‘Identities’ started out, almost by definition, as ‘victims’ since each of them had to have an initiating and ‘defining’ grievance, an ‘oppression’ which – cast like a well-waxed (and sharp-edged) board upon the cresting wave of the ‘civil rights model’ - required immediate public recognition and redress … and that redress was due ‘yesterday’, since the ‘oppression’ was a violation of ‘rights’ that had been going on for centuries or even millennia.

But in the beginning, all those decades ago when We had half-a-million troops on the backlot that could be sent to Vietnam and hundreds of naval vessels to supply and support them, one was whatever one’s Identity was, and a victim only by the working of that Identity’s particular oppression.

Then in the Reagan years the very act of being ‘victimized’ became a free-standing Identity of its own. Since a Venusian ‘sensitivity’ had already replaced a Mars-besotted male ‘insensitivity’ – of the kind so often displayed by such violent lumps as factory-workers and union-members – then to declare oneself a ‘victim’ – and it would hardly be sensitive to inquire further – was pretty much like putting a flashing light and siren on your personal minivan and heading downtown to see what would happen, joined by others who discovered themselves in the same situation.

I particularly recall when all of this struck me: in 2001, Year One of the Beginning of the End (though maybe I’m being too hard on the Bushling, given what he was left by the Clinton neolib and Reagan neocon administrations), We finally got around to executing Timothy McVeigh, in June of that year.

Few, I hope, need prompting as to the execrable terrorist act he perpetrated at the Murrah Building in Oklahoma in the spring of 1995. The gravest penalty that the justice system could apply was certainly merited for that action. And may God have mercy on his soul and the souls of all whose lives he took.

But the shocker was to listen to the assembled crowds the night of his execution. And to compare it with his own demeanor. Here among the crowd were displayed a seriously rattling set of emotions: vindictiveness, revenge, an almost frenzied glee in the presence of Death (whose presence or proximity no wise adult human being should ever take lightly). The intensity of such violent – perhaps primitive – emotions was so great that it overshadowed the unpleasant sensation of seeing adults comport themselves in public, especially when the histrionic quality that microphones and cameras always seem to engender is factored into the mix. It struck me that if a significant number of the citizenry were operating on this level, or were capable of letting themselves descend to this level, and not only in this instance of McVeigh but as a matter of habit or reflex, then democratic politics were in far greater danger than I had previously imagined.

McVeigh, on the other hand, displayed a self-possession and even insight into his situation (and impending condition) that – contrasted with the crowds – constituted a profoundly disturbing dissonance. He quoted the poem about being ‘Captain of my soul’ and ‘Master of my fate’ (I’m going on brute memory here.)

It struck me that in almost any other circumstance such an aspiration to the high road of self-mastery would be taken, especially in one so young, as particularly encouraging, especially in light of the beating ‘maturity’ and ‘character’ had been given in the previous decades, not only by the deconstructionists and the Second-Wave Feminists, but also by Our own homegrown ‘philosopher’, John Rawls, who ‘philosophized’ that there is utterly no way of saying that one approach to life is ‘better’ or ‘worse’ than another and that folks not only shouldn’t be ‘judgmental’ because it wasn’t ‘nice’ but that indeed there was utterly no basis in reality for making such distinctions or ‘judgment’, which was really just another form of ‘discrimination’ (and everybody knew what sort of person did that). A person who counted blades of grass as a life project was ‘equal’, therefore, to a person who developed a cure for an ancient and deadly disease. Thus Rawls. (And perhaps working with blades of grass will soon be the daily occupation of more than a few of Us, due in no small part to the ‘conceptual framework’ Professor Rawls sought – not without success – to have imposed upon Us.)

But as the time moved toward the actual execution McVeigh’s stance seemed to enrage the vast majority of those present for the occasion.

It’s possible, of course, that his was simply an ‘act’ calculated to spit one last time in the eye and on the loss of the bereaved. But even if it was – and there is no way to know for certain – then it would say an awful lot about a person who could hold up such pretense in the face of immediately impending death. And if on the other hand he actually meant it, and that the consolation he derived from his philosophy (or – who’s to say? – faith – or some illumination, revelation even, that draws near or is sent to those who are aware of the approach of their own death) … well then, there were things going on in him and among Us that should give any sober adult serious cause for extended contemplation.

But either this possibility did not occur to the crowds or – if it did on some dim and deep level – it enraged them and goaded them to frenzy all the more.

At which point no student of human affairs could avoid the intimations of things-medieval in the crowd that bode darkly for the remarkable, if incomplete, achievements that ground Our culture and Our civilization (though huffily pooh-poohed as ‘founderism’ by far too many among Our current ‘elites’). “O brave new world” indeed, “to have such people in it”.

Needless to say, there was much cheering – lurid in the klieg lights – when the agents of the state carried out the execution. I couldn’t help but thinking that it certainly makes the government’s work easier, when its agents are cheered on in the dealing of death. It cost the Nazis a small fortune to keep their own executioners liquored up sufficiently to shoot folks, at least until agents were found who could work the machinery of the gas chambers and the ovens with a focused technical skill and loyalty to the mission, un-distracted by the presence of ‘the human’.

And hadn’t McVeigh himself been trained in advanced-level military methods of dispensing death?

In the roil of interacting forces and realities, wreathed in the smokes of superheated passions, sharp and clear boundaries were starting to become hard to discern.

No doubt many were agitated that McVeigh was not following the ‘script’: pure evil is unmasked by pure good, true justice is imposed, and the last task of evil is to acknowledge itself (and thus acknowledge the goodness of its captors). The Puritans expected no less a responsible discharge of the role from those whom their judges placed in the stocks or on the gallows; during the Inquisition the prelates fondly hoped for the same so as to edify and encourage the onlookers in their rededication to leading a ‘good’ life (Rawls would say that nobody - or anybody - could say what a ‘good’ life is). Indeed, the citizenry came to these things expecting some sort of ‘living sermon’ that would evoke an emotional wallop far more powerfully than any run-of-the-mill Sunday preaching might do, although it was also fun just to get together with other folks and hoot and howl at the death of somebody else, somebody who – as far as could be determined – deserved it.

Back in the day, it was accepted that ‘God’ would agree with the court’s verdict and with the public opprobrium, and would obligingly keep up the pressure when, after so brief a moment, the soul of the now-executed passed beyond all human jurisdiction and ken. Though not even the Church presumed to guarantee just how God would handle things once the soul was in His immediate jurisdiction; a well-grounded official humility not retained by Protestants, especially in this Chosen Country, who saw themselves as deputized by and speaking for The Divinity, Whose wisdom and righteousness they so completely mirrored as to be pretty much the ‘mouth of God’ themselves. Thus the Protestants.

Although, in secular America, as it has more fully become, there is also the probability that among those who don’t really accept that there is a ‘god’, or even a ‘beyond’, the rage could be sparked by the fact that they were not getting the ‘bang’ for which they had spent so many bucks. A bawling, groveling prisoner is certainly more emotionally satisfying and his very abasement advertises vividly the authority and moral stature of the system that is killing him. Roland Freisler, marquis judge of the Party Court in Berlin back in that day, went so far as to loudly insult and berate those brought before him, in the fond hope of reducing them to a blubbering mass or – if not – to get in some loud verbal whacks for the Propaganda Ministry cameras just so that the Party kept ‘control of the narrative’; the worst thing would be for a prisoner to display any traces of a stronger character or a confidence derived from a source far beyond the Party’s reach – although, in that unlikely instance, the film reels and tapes could always be ‘lost’ afterwards. In any event, the conviction of the accused was guaranteed, for Freisler boasted that his court deployed ‘the law at war’, and followed up that military insight with a military efficiency that surpassed anything the Wehrmacht could achieve in the empty wastes of the desert or the snows of the Russian steppe. ‘War’ is a lot easier when you control all the players and your mind is unshakably made-up, unwavering and ‘certain’.

By coincidence the film ‘Doubt’ is now in release and being reviewed. It has to do with a priest bethumped by a nun who is ‘just certain’ that he must be an abuser, although there is no evidence. For her, suspicion is all the evidence required. In this, whether she knows it or not, she is supported by Professor Doctor Freud, who was quite certain that ‘sex’ is the ultimate ground and reality of human motivation, when all pretense of ideals or virtue is smashed-through. His present views, alas, are beyond Us.

More to the immediate point, the government has now brought ‘victims’ to Guantanamo – that top-secret, national-security base where the ‘worst of the worst’ (a characterization that up until a few years ago had been reserved by the Pentagon for those whom its justice-system had sent to the military lock-up at Fort Leavenworth) are penned, pending the workings of ‘the law at war’. (‘Chaos in the 9/11 courtroom’, here ).

I have written before about the possibility that ‘victims’, whose cause in the beginning a couple of decades ago seemed to be coming from ‘the left’ – a ‘liberal’ concern for ‘sensitivity’ – appear to have become the cats-paws of the government, providing a handy, media-friendly, people-friendly cover for the government to expand its police power in ways that it could never have done merely by asserting its own will and purported authority outright.

Now the government – perhaps out of desperation – has opted to make its game-plan more obvious, revealing that it would very much like to be seen as merely the agent of ‘helping’, doing what it can to bring ‘closure’ to those oppressed – and quite naturally so – by ‘grief’. A sort of militarization-as-therapy, you might say.

If such a ‘narrative’ is successfully spun and controlled, then a President Obama might indeed be forced to continue the Guantanamo trials lest he risk being seen as ‘insensitive’, which is from the feministical point of view as lethal a charge as is the appearance of being ‘weak’ from the nationalist-macho point of view. (Our politics is truly debauched if these are the only two ‘views’ from which We can choose.) It’s a shrewd move in the unsleeping card-game that the military has always played in regard to the workings of its justice system, the one that Bush merely expanded – clumsily and recklessly, but that’s Our George – into fields far more exposed to the bright light of Klieg, but also of Truth.

Not all of the families (and upon their dead and Ours be much peace) are pleased. But members of the group (‘September 11 Families Denounce Guantanamo Trials’, here) asserted their ‘pride’ at “the rights the defendants were afforded”. The dark implication, so integral to ‘victim-justice’, is that a defendant is guilty anyway, so anything done on his behalf is something generous, and you can rightly be ‘proud’ of yourself and the system that has snagged him. “This is a very appropriate, fair venue” said one, whose status as one of the bereaved far outshines any PR flak – in uniform, male or female – that the Pentagon could deploy in front of the mikes and cameras. Another, a mother whose son died on that day seven years ago, unsurprisingly characterizes the defendants as “dreadful” and refers to “their miserable lives”, although – again – We really don’t know.

On its good days – if they haven’t completely passed – that was exactly what a genuine Western-civilization type of trial would be expected to determine, even though only “as through a glass darkly”. But such delays and distractions – especially if the snagged were determined to be innocent – are gall and wormwood to the law-at-war and to revolutionary justice in general, and ‘victim-justice’, sadly and very disconcertingly, has much in common with both of those types of justice.

But it is an unhappy coincidence – and perhaps more than that, God not being of a certainty dead – that on the same day that the Guantanamo statements were made, a Senate committee – sacrally ‘bipartisan’, and with John McCain’s name at the top – issued a report that “former Defense Secretary Donald H. Rumsfeld and other top Bush administration officials are directly responsible for abuses of detainees at Guantanamo Bay.” The report goes on to note interrogation practices that We had once thought Ourselves to have evolved far beyond.

Which does not provide grounds for ‘denying’ or ‘minimizing’ grief and loss, but does suggest that perhaps a mind so overshadowed by a grieving heart – that particular and extraordinary sensibility – is not best relied upon to conduct the careful workings of justice, especially when such monstrous realities as death or even life-imprisonment are loose on the table.

There is, many would still admit, a God, after all; and even for those who don’t so believe, who wants to contribute more darkness to the world by stampeding toward so grave a consequence as a life ended or permanently imprisoned, which might also entail a mistaken determination? In this matter, We and Our judges would be exercising the prudent caution of the bomb-defusing expert, not the witless slackness of the morally unconcerned.

So it seems to me that commentators who recently have been trying to sidle toward truth without upsetting anybody, who justify Our hugely improvident reaction to 9/11 by purring that We were all just overcome by emotions generated by that day’s events, aren’t quite grasping the whole truth. We – or far too many of Us – were already operating on that level well before 9/11. ‘Victim-justice’ and its accompanying public ‘narrative’ and ‘script’ guided far too much of Our public consciousness long before that fateful day.

But fateful it indeed was. Having become used to relying on passion, and to letting Ourselves operate from and even dwell in, the darker passions, as the basis of Our public and Our common sensibility, We offered no effective resistance as the Bushist imperium surfed those waves of passion, dragging Us all into a war in the East from which this generation shall never recover, and for which future generations will hold Us all responsible, here and around the world.

Actions have consequences. So do passions. Is that news?

JAGS IN THE WIND

Over on Truthout there’s an AP report that a Navy lawyer has gotten six months imprisonment (www.truthout.org/docs_2006/051907C.shtml). Thoughts are prompted.

The lawyer got the sentence after a court-martial; no surprises there. Concluding a six-month tour of duty at Guantanamo as a ‘legal adviser’ (whatever that might be in the circumstances obtaining down there), he had sent an anonymous note to a civil liberties group with the names of the 500 detainees.

Age 41, he was a Lieutenant-Commander. He was no newbie. So it’s getting bad enough that even guys around for the long haul in the JAG corps are starting to waver. In a mob Family, when guys already ‘made’ start to crack, the bosses gotta give things some serious thought.

He was on a six-month tour. That’s kinda short. You can’t hardly get anything done in such a brief tour: can’t get to know how things go, know the command and the commander, establish the informal web of connections that enable you to do your job efficiently. You hardly get unpacked and you’re getting packed again. Very inefficient. Maybe that’s how the Navy wants it, when it comes to ‘legal advisers’: that way, nobody’s to blame: the Navy and the individual’s conscience can be protected: s/he was new, wasn’t here long enough to get a handle on things … leaving open all the usual ploys like ‘it was an oversight’, it couldn’t be helped, it’s so tough down there with those awful terrorists that even hardened JAGs have to be rotated out quickly so send us more money and authority to torture. That sort of thing.

He was “eligible” for 14 years. He got six months. Maybe even juries of Navy officers are starting to get squeamish and are doing the right thing. Maybe. The charge was to the effect that what he did could be used to injure the United States … just a short climb down from treason. They gave him six months?

But perhaps it’s because he made all the right noises at the court-martial: It was “cowardly” to release the names in that manner, he ‘admitted’. Yah. But torturing people you’ve snuck up on and kidnapped is not at all cowardly. Amazingly, he was allowed to speak to the press: he had an interview with the ‘Dallas Morning News’, but maybe that’s not the one in the middle of Fundy, gummint-worshipping, patrioteering Texas … maybe it’s some other ‘Dallas Morning News’ that the Navy marvelously allowed him to speak to.

So he makes all the noises an Old Bolshevik would have made at his show-trial in 1938. But it's true: America is still better than Stalin's Russia: old Joe would have had him shot anyway; Attorney Diaz just got 6-months (and it isn't a felony unless you get a year, so his Bar license is safe too). Funny - you can do stuff that will "injure the United States" but it's only a misdemeanor. So kinder and gentler, our Navy - and so un-cowardly. Yah.

Not that the names weren’t up for grabs. The Supreme Court – marvelously – had ruled in favor of the Center for Constitutional Rights that the suspects had the right to challenge their detention, but the Pentagoons then refused to release the names of the detainees. But that wasn’t cowardly. Zey verr chust followink orders. Ja.

But if Mr. Justice Thomas parties with torture-whores, and Mr. Justice Scalia’s only defense of the Court’s Bush-enthronement Opinion of 2000 is that we should all ‘just get over it’ and fuhgeddaboutit, then We are going to have a job of work trying to hold the Navy accountable. But We have to start somewhere.

God, as the Fundamentalists brethren and sistern are wont to point out, is coming soon. And He’s got a little list.

ENOUGH TO GAG A JAG

This morning’s reading brings a curious sequence of straws in the wind.

Alex Koppelman over on Salon reports that Sen. Lindsey Graham (R-SC, ex-JAG, reserve JAG, JAG appellate judge, senior JAG) boasted to a Marine who had gotten birthday wishes from the governor of SC (they certainly do like to be seen with uniforms, those Southrons; perhaps they’re attracted to them, as other demographics also are) that he Graham was going over to Ramadi in July and would “walk down the streets where the insurgents had a parade”.

Feh. As Churchill opined “In victory, magnanimity”. But of course, that presumes an adult mind and spirit sufficiently evolved and capacious to platform the virtue of magnanimity. Graham hasn’t got those kind of chops. Indeed, as has been discussed on this site, the JAGs are looking for a few morally mediocre folks (and given the challenge of getting up in the morning as a JAG, that’s both shrewd and prudent; see below). The banality of immaturity – especially of the American Southron macho type – comprises American’s unique corollary to Arendt’s ‘banality of evil’. Immaturity – maturational mediocrity and unripeness, psychologically, mentally, spiritually, morally – as the grease that speeds the path of evil. Yeeeeeee-hawwwwwwwwwww! The road to hell paved not with good intentions, but with the spent casings of .45 slugs fired into the air in bumptious assertion of a deformed efficacity. In yer face!

But of course: we aren’t winning. It would in a way be of some consolation to know that the JAGs were only deploying Churchill’s adult spirit in the alternative: “In defeat, defiance”. But that presumes that one is mature enough to see and ‘process’ the fact of one’s defeat. And the defiance would be of a distinctly Churchillian kind: sober, serious, resolute, efficacious; possessed, in short, of a gravitas emanating from the very spirit and soul of the soldier. Splendid. But it is not Graham, nor any of his ilk.

Graham’s is a macho, fratboy defiance only modestly better than the darkly-grooved and stained ‘stubborn’ and oppositional you-can’t-make-me defiance of the Unitary Deciderer himself. It is the queasy assertiveness of the semi-solid, underdone personality that senses the imminent danger of its own guilt and weakness being exposed and must seek to escape the truth about itself. Not so much whistling by the graveyard then, as it is in-yer-facing by the graveyard. The graveyard of actuality and consequences and one’s own weaknesses and failures … and if those be ghosts, then they do indeed walk.

And they made him a lawyer. And an officer. And a judge. And elected him to Congress. To the Senate. No wonder the 109th Congress did everything except make Bush’s horse a god.

Meanwhile, on another part of the ranch, Andrew Sullivan reports that the junior JAGs who did what they could to defend the Gunatanamo detainees have – by the by – been passed over for promotion (http://andrewsullivan.theatlantic.com/the_daily_dish/2007/05/punishing_the_l.html. Gee. What a coincidence. The colonel JAG in charge of the ‘defense’ team opined that four of the six on the team who were up for promotion were ‘passed over’ because they had been warned that actually defending the accused “could be detrimental” to their careers. Thus military justice. Thus JAGgery.

Thus I say again that while Bush may have perverted the generals, he did not pervert the JAGs. That organization is already, in its very essence, perverse. Bush – and Darth Cheney – simply realized that the JAG way was perfectly suited to the subversion of the rule of Law in pursuit of quietly predetermined objectives. And the JAGs had perfected this vicious kabuki over 50 years of piously administering military justice under the ‘reformed’ Uniform Code of Military Justice. The JAG way was utterly congenial to the unripe character of an addictive personality and the machinations of a treacherous power-mad subverter of the Republic.

I think that being ‘passed over’ may be a blessing of Biblical proportions for these young JAGs, if they are able to rise to the opportunity Grace and Heaven have provided. In being cast forth into the desert of civilian life they will cease to be implicated in the Pharaonic stubbornness that is dooming the current regime. And perhaps they might even find themselves – personally and professionally – experiencing a new birth of freedom. There is precedent, and substantial precedent. It will require a certain ripeness, a ripening – more specifically – but any mature adult knows that such is always the Journey that must be undertaken. Nor is there any shortcut. Nor is there any substitute: uniforms, rank, medals, status, role, or place. There is only the willingness to follow the Pillar of Fire into the darkness, hoping and seeking to be equal to the day. And should their determination flag, they have monstrously clear examples of moral and maturational failure among their seniors to refresh their resolve. May they respond to this Call, and prosper. We need all the wise and honest lawyers We can get; We appear to be suffering a surfeit of the other kind.

In that regard, Heather Havrilevsky, Salon’s TV commenter, observes (http://www.salon.com/ent/tv/review/2007/05/14/sopranos/) “just how many layers of self-deceit it takes for the man [Tony Soprano] to get up in the morning, given all of the brutal acts he’s committed”. Naturally, one thinks of JAGs. But We have to prepare for this reality: everybody connected with furthering this Iraq debacle is – for the purposes of moral and psychological consequence – going to be experiencing this particular type of Post Perpetration Stress. Whether the individual admits it or not, and no matter how the individual handles it and deals with it, there are going to be invisible deformations even where there are no physical wounds; psychological, characterological, moral, spiritual. We have to understand this, because even more than the German people, We allowed this to happen to them, We allowed this monstrous situation to develop, We have allowed it to go on.

And to Us they will return. Hugely insightful, the ancient Christian Church required all soldiers returning from war to undergo a ritual period and ritual ceremony of ‘cleansing’, based on the profoundly sage insight that war – whether you win or lose and no matter how good your intention – is a viciously and insidiously infectious thing, and will wreak damage on the spirit and the soul even if it foregoes wounding the body.

If We must go shopping, let it be for the wherewithal to meet the needs of those who return.

And, finally, Glenn Greenwald, again on Salon (www.salon.com/opinion/greenwald/2007/05/14/thompson/print.html), reports on Fred Thompson’s latest sermon on the value of the Rule of Law and how only the Republicans (as presently constituted) can be trusted to uphold it. It can be said that at least in the time of Nixon nobody really imagined that things could get so bad, but We cannot make that excuse now. Nor can Thompson, for this reprehensible performance.

Perhaps he is merely posturing in order to play to the current Republican base; perhaps – as one of the former Nazi judges asserted in “Judgment At Nuremberg” – he stayed on the bench precisely and purely to modulate the horror and the evil. But if it is Thompson’s vision to retain the current base and still restore the Rule of Law, then his vision is flawed, if not witlessly execrable, to begin with.

And if he is truly planning to restore the Rule of Law, then he cannot in the same speech demand the pardon of Scooter Libby (see “Libby No Baddy?” on this site). Accountability is going to have to be accepted, with all the consequences. In that regard, Mr. Justice Scalia is not setting a good example. He has developed a stock response when interlocutors question him about his and the Court’s egregious intervention in the election of 2000 (now separated from us by an aching abyss of might-have-beens): we should just get over it and move on, opines Scalia – a defense which no doubt many of the defendants that have appeared before him in his career would surely have loved to have made. Should Mr. Thompson be sincere – and there is no reason to presume that he is – then his restoration of the Rule of Law will not be able to rely totally on the Supreme Court. Although, if torture might help, Mr. Justice Thomas will be glad to concur.

We here must highly resolve …

MO GUANTANAMO

Well, they had the first … session … of the Military Tribunals down there yesterday. The “Orlando Sentinel’ reporter interviewed on PBS ‘Nightline’ seemed to be under the impression that nothing happened and everything degenerated into a flat discussion of procedures, except that the defense lawyers – surprise! – were disqualified by the military ‘judge’ and left the room and that it was now expected that ‘weeks’ would pass before further activity in the case.

But then both the ‘Washington Post’ (www.washingtonpost.com/wp-dyn/content/article/2007/03/26/AR2007032602439.html?nav=module) and Reuters (www.truthout.org/docs_2006/032607T.shtml) reported today that somehow somewhen yesterday the accused – the Australian national David Hicks – had pleaded guilty and it was all over but the sentencing.

As always with the military legal system, and with JAGs, you can’t let your guard down for a minute. You’re up against a military operation, remember, and these days you’re up against one that’s failing, which takes the overriding military ‘virtue’ of Victory and adds the further enabler “by all means necessary”. After all, there is no greater ‘emergency’ than ‘losing’ and – given what they’ve been doing – being ‘found out’. Just ask Quaint Al.

So here we have it: The first of the Military Commissions Act ‘trials’ – I am going to call it an ‘event’ instead, for the sake of clarity – finally takes place; they’ve chosen an Australian national, from that once-independent country that recently elected a Bush-hugger as its boss; he’s been there the longest and may have been the first prisoner; he has his father and sister there and they eat lunch with him before things get going; he is paunchy (and, we are expected to assume, well-fed and, we are further desired to assume, untortured); he goes in without cuffs or shackles (a charming if sleazy touch) and watches his powerful civilian defense team dissolved before his eyes in a fog of procedural stuff; in a slow-motion flurry of gobbledygook that convinced some reporters that it was over for the day the defendant suddenly pleads Guilty after all – to one charge – and it’s only a matter now of sentencing him; the US has already said he’ll be sent ‘home’ to do whatever time he gets in Australia-land, where we might imagine that he will have more amenities.

Slam, bam, thank y’all. A very military operation.

What the hell happened here? What the hell happened there?

Somehow, it feels like a script. The kid caved after the military got rid of his independent civilian" counsel, and left him with dad and sis and his military counsel and promised to send him home most chop-chop. But what good would that do to the government?

The chief prosecutor JAG, Air Force Col. "Morris" (The Washington Post) “Moe” (Reuters) Davis, provides the desired spin: Critics had for all practical purposes turned public opinion against the Military Commissions and now he expects that things will change. “This criticism that we’ve created some novel Frankenstein, cobbled together kind of system is totally inaccurate … we’ve got nothing to be ashamed of and we’re going to tell our story.” That’s their story and they’re sticking to it. But ... alas, much as the JAGs want to get the good news out about their goodness, this particular opportunity sorta disappeared in a foggy rush, so, well, gee, gosh, looks like we'll have to wait until the next 'event' to let them get their 'story' out. And quite a story it will no doubt reveal itself to be.

And Davis is the senior JAG prosecutor down there, so you might as well ask Jimmy ‘Big Salami’ Botchagaloop how things are really going in the Family as ask "Moe" how things really work in the his interesting little patch of the military legal system.

But what Davis limns is exactly what the JAGs, their military bosses, and the White House could want: get rid of your longest-serving prisoner; avoid any unpleasantness in the form of Truth coming out in an independent defense; get a ‘conviction’ – and a Guilty plea from the accused himself to boot! – and get him out of there; turn somebody loose who isn’t burdened by being not-white or not-Western; provide a great scene of family reunion; and fortify your crap with the ‘fact’ of a successful ‘trial’ and conviction and the accused’s own admission that he done bad and that you had justly incarcerated him all along. In the best of worlds, the White House might even be able to deflect some of that burnish at its own programme: We’ve been right all along – so now you know …

Very clever. I hope it’s too clever by half and that folks can now see just how stage-managed this thing is at all levels: the White House, the war, military ‘justice’.

Of course, there’s a lot at stake: the JAGs have been in this thing up to their ethically-challenged ears all along, and if the war goes away then you want to a) get a medal for your trouble and b) avoid prosecution yourself when the cheering stops. The JAGs’ Pentagoon bosses want some good news – any good news – to show that some aspect of “Iraq” is in victory-mode. Ditto the White House that wants to show that a) it was right and b) some aspect of its hyperial enterprise is in victory-mode (so that the less-thought-burdened among Us might presume that everything else is in victory-mode as well).

All in all, a most impressive performance: let Us be impressed with the profoundness of the corruption that faces Us, that claims Our authority and simultaneously defies Our authority to cleanse it. And – may I? – “Let us therefore brace Ourselves to Our duties and so bear Ourselves …”

JAGS DO GUANTANAMO

Marie Brenner has an article in “Vanity Fair” entitled “Taking on Guantanamo” (www.vanityfair.com/politics/features/2007/03/guantanamo200703). She is a writer-at-large for the magazine.

I suppose that she has to conform closely to the way articles are written in our modern American reality. Rather than get down to the facts and the issues directly, there has to be a ‘story’, and that requires good guys and bad guys, and that the good guys are uncomplicatedly good and – to the extent it can be gotten away with – the bad guys have to be bad. This will figure into what follows here.

It’s the story of Lt. Cdr. Charles Swift, the Navy JAG officer who is soon to be leaving the Navy because right after he won his case on behalf of the detainees in front of the Supreme Court the Navy lawyer promotion board just happened to not-promote him, and he has to leave the Service. This despite the fact that Congress – infamously – passed new legislation directly after that victory giving the Unitarium all the legal power that had been refused by the Court.

It’s a curiously schizoid article, but then Brenner has to keep Swift and the JAGs as good guys while simultaneously keeping the government (or some part of it) as the bad guy(s) without at the same time pissing off the Unitarium. It was no doubt a difficult assignment.

She calls Swift’s position as “[A]n untenable situation. He had been asked, as a military lawyer, to defend enemy combatants …” Recalling the points made on this site (“Bishops Bomb”, “Warrior Professionals”, and the several Watada Posts) it is clearly a logical conundrum to have U.S. military officers defending anyone whom the military has already designated as defendants in military trial proceedings; those trial proceedings, as all military ‘justice’ proceedings, are in the military’s unspoken view military operations in pursuit of military and national security goals, and team-players don’t buck the team.

This is especially complicated because, the article goes on, if Swift were to follow the military rules as a civilian lawyer he would be committing “ethical violations". That the military, implicitly, has set up such an impossible situation is clear indication to the careful reader that ‘military’ and ‘law’ don’t easily go well together. Of course, the military can claim that it is only following orders (Ja) but it is the military’s own operational philosophy, since espoused by the Unitarium, that is now echoing back here: there is one Boss and what he says is what happens and the team will bring his plan to a successful and victorious Outcome. This is the philosophy that informs this Presidency and this Executive branch, to the clear and present detriment of the Republic.

Brenner, as noted, doesn’t deal with that directly, although to her credit she then goes on to assert that there can be no doubt that the swift ending of Swift’s JAG career “sends the chilling message to remaining military lawyers about the potential consequences of taking their job, and justice, seriously”. Precisely.

But this has proven no obstacle to the lawyers – most of them – over the half-century of the military justice system’s codification. One simply makes trade-offs, a living, institutionalized, systematized exemplum of Hannah Arendt’s “banality of evil”. (As might also be said of the recently discovered rot in the realm of those other professionals-in-the-military, the doctors, specifically the mess at Walter Reed and probably at all the military hospitals.) Listen to no senior military doctor or lawyer, currently serving or retired, when he reports himself ‘shocked, shocked’. His winnings are already in his hat and on his chest.

Swift himself is a tad schizzy. Asked about a “New York Times” editorial decrying his own effective firing, Swift is irritated: “There is nothing clear-cut about this … It is not black and white”. He may want to come back to serve as a civilian defender in military trials (servicemembers are perfectly free to hire such counsel, at their own expense, and perhaps some of those civilian counsel take food-stamps).

In an article that cannot but limn – even if only by omission – the outlines of a rigged and ruthlessly cynical system, Swift makes several more comments along those lines: “I believed that if navy [sic] JAG set up the military trials, they would be first-class”. Well, yes, but first-class w-h-a-t??? It’s impossible for a competent professional with his background, his training, and his past and present experience to make such a statement if it is to be taken at face value.

Equally so is Brenner’s comment, channeling Swift, that his boss JAG was “a prosecutor’s prosecutor, trained at Duke Law School and dedicated to justice”. It is as easy as falling out of bed to be a successful prosecutor as a JAG, and if you can wear your ribbons correctly and show up in a pressed uniform you’re on the way to quick promotion. Duke Law School is – like the whole Duke operation – a heavily military and Southron-influenced school; that it is shrewdly trying to position itself as a defender of Law and Justice in the face of the increasingly overt monstrosities enacted by the Unitarium may very well be shrewd act of self-preservation. Much as last Fall the JAG bosses made such a pious public show of declaring their opposition to the tribunals and saying that they had opposed the Untarium’s legal and illegal actions since 9-11; after which week of stand-up stuff they reverted to the invisibility and silence that characterized their previous four years. And “dedicated to justice” is a stock filler line so blatant as to beg for – as they say in therapy – ‘unpacking’; especially in the context of military justice.

A Marine lawyer, a colonel, crisply if informally quotes Rule 5.4 of the JAGs: “If you have a military lawyer, he is completely independent, even though he is subject to his military senior.” Yah. Just like if you have a Navy ship at sea the hull is completely dry, even if it is plowing through the open ocean. Independence against the command program is precisely what the military is not all about.

The article continues, noting that one of the most efficient ways of “weeding out troublemakers” in the Department of Defense is simply to not-promote them; because under the military policy, if you’re not promoted in a certain amount of time, then you have to leave the Service.

But, delicately, the colonel notes that it’s really just that the “JAG corps prefers their career lawyers to be generalists, not criminal defense specialists”. But of course, mon colonel! If one gets too good at it, one might start to take it seriously. And if one is left on (the invariably doomed) defense too long, and sees what goes on and what s/he has to do to stay on the team, then the JAGs might have to start providing regular liquor rations to them just like the SS had to provide to its execution squads in the Ukraine. But for many military lawyers, it must be assumed, good pay and benefits and resume-fattening ‘experience’ and the occasional medal seem able to do the trick. And a trick it indeed is.

Nor is the colonel trying to hide anything. “There has always been a psychic and moral division with JAG. Soldier first or lawyer first?” In the words of Ulysses S. Grant: “It’s too too true.” But the colonel, having pointed out the obvious, neglects to go into the heart of the matter: there can be no halfway solution to this dilemma. An honest professional counsel sells out either the client or the military responsibility of an officer. And like prostitution, it’s an all-or-nothing sorta thing, one or the other, zero-sum. The JAGs prefer to be known for their zero tolerance.

And as discussed at length on this site (“Military Justice Is No Music”) this dilemma of the JAGs merely reflects the dilemma of all military ‘justice’: it’s an impossibility, however necessary it is to keep up appearances in a democracy whose People – at least in the vision of the Framers – are so thickly hedged about with Constitutional protections against arbitrary government power and against the deciderings of Unitary Executives such as kings and …

More honestly, and essential to injecting some ‘bad guy’ stuff to spackle things up, Swift observes that “There was the legal case and there was politics. Politics drove every decision”. So much for the professional ethos of dedication to Justice and Law. Fiat Justitia, ruat coelum – unless the command directs otherwise.

But at one meeting of JAG defenders, “all agreed that what was happening at Guantanamo was something straight out of the Gulags of the Stalin era”. A ray of sunshine indeed. And Stalin’s ideas have a long if muted relationship with military justice. He was of the opinion that as long as your guys controlled the whole process, then you could write into the rules any ‘guarantees’ that you needed in order to keep the public happy, or at least quiet. No use making unnecessary trouble for yourself by painting a great big “Rigged Game” on the thing; keep people quiet and keep on sending your quotas to Siberia. It’s not rocket science. As demonstrated in “Military Justice Is No Music”, it’s possible he got the idea from the Army JAG of the First World War era, one General Crowder. So things are a tad, as the Pentagoons like to bray, “incestuous” in these military justicial matters: Stalin/Crowder, Pentagon/Praesidium, JAG/Gulag, Justice/ Shmusstiss.

And, upon discovering that the order to commence tribunals came from the Deciderer himself, Swift says “When the president says you are guilty, you better damn well be guilty.” Because “[T]he most important rule is: Don’t embarrass him.” Now this comment doesn’t make sense unless it’s trying to convey this: If the president has already declared you an enemy combatant, then no JAG better go in and prove that you’re not, because the first rule for JAGs is that you don’t embarrass the president. Not unless you have no family to support, no bills to pay, no need for a military career, and you have a serious trust fund.

The article goes on to describe the similarly dissonant experiences and musings of a civilian attorney named Katyal who gets involved in the defense, finds out all sorts of unbelievable things before breakfast, and yet still thinks JAGs are pretty much a swell bunch. Well, most vampires are, until they’re ready to eat you or you get out of their way so they can eat somebody else. The citizen seeking to be informed could do worse, nowadays, than to bone up on vampire lore.

The JAGs assigned to defend the Gitmo detainees under the new rules (thanks and a top of the day to Congress) establish their bonafides by confiding that they refer to the ever-changing ‘rules’ as “Alice in Wonderland”. It’s nice, it is. But the Israelis probably wouldn’t have taken that defense from Eichmann (not that that monstrous drone would ever have thought to make it) and the Nuremberg panel wouldn’t have taken that defense from Keitel or Jodl: In ze efeninks, among unser-selfs, ve vood laff at ze Fuhrer’s krazy-bad ideas, ja?

Nein. Nope. Nuts.

MILITARY-ISMS

Jason Leopold reports that the Army’s court-martial of 1st. Lt Ehren Watada has entered its preliminary stages (www.truthout.org/docs_2006/010207J.shtml). The trials to come begin to arrive.

The military justice system has been discussed elsewhere on this site. We can sum up its limitations briefly: the military ethos is in its very essence incompatible with the adversarial process of rendering justice that is the hallmark of Western law. An independent judiciary and trial by one’s peers is not simply enshrined in the Constitution but is required by it. The command’s absolute control of any military operation – and that, inescapably, is what any military legal proceedings are – cannot allow the possibility of an outcome adverse to that command, nor will any member of the military team – and all significant participants in such a legal proceeding are, inescapably, part of that team – can long retain their position in the military if they fail to do all they can to ensure the desired Outcome. The Integrity of the Process, so vital to Constitutional justice, is replaced in the military system by the efficiency through which the desired outcome is loyally achieved by the military team.

There are very large and fundamental questions that remain unresolved in this Rube-Goldberg legal system, cobbled together precisely to avoid addressing its grave deficiencies: Granted that the military can court-martial its members for military offenses, can it do so outside of a time of war or national emergency? Granted that Congress is given wide latitude in the Constitution to provide for defense, is even Congress granted the right to suspend a citizen’s Constitutionally guaranteed rights? Can Congress require citizens to yield those rights, as would be the case for a draftee? Granted that Congress can has the power to declare as criminal any acts that it sees fit, can Congress also erect its own court system, one that admittedly is permitted to provide substantively fewer Constitutional protections to the accused, to try those acts? Can even Congress authorize such ‘courts’ to prosecute the entire civil criminal code as opposed to only military offenses? Can the results of those legal proceedings legitimately be called ‘criminal convictions’?

While the nation’s courts, including its highest Court, have tried to stitch some sort of covering for the thing, they have never been able to resolve these questions. To say they have resolved them satisfactorily is simply to say that the necessary victims were insufficiently numerous or influential and were expendable and that the nation was content to let the military be the military within its own preserve.

That preserve has expanded now, and continues to expand even more hungrily in the aftermath of 9-11. It is no longer a smallish, well-defined preserve within the larger American culture. Chris Hedges, in his new book ‘American Fascists: The Christian right and the war on America” and in 12/31/06 post over on Truthdig, notes that Fundamentalists now comprise 50% of the military chaplaincies, and while they go after almost every institution in contemporary society they always play up to the law enforcement and military communities. The military justice system is a key nexus of these deeply un-American developments. It is infiltrating the legal systems of American society, it has flowed in quietly but quickly to fill the vacuum created by the many distractions to which The People have been subjected over the decades since the National Security State first saw the light after World War Two. In the weakness induced by that distracted condition, The People has not been able to take decisive protective action. Not yet, at least.

It’s important to note that what we can expect from any proceedings is that the military will not suffer an unanticipated outcome. Whatever the outcome may be, it will be the one that the military has decided upon and has prepared for.

Whether that is for or against 1st. Lt. Watada is another question altogether. A dozen or so years ago a Sergeant Major of the Army was charged with sexual harassment, which to the average military mortal who is not a general would be the knell of professional death and quite possibly – to the extent it can Constitutionally be so called – ‘criminal conviction’. But then the Sergeant Major’s defense counsel – and such an exalted enlisted member could afford, and knew instantly that he needed, serious and expensive counsel – let it be known that the Sergeant Major had a little list, specifically of current and former general officers whose sexual activities were even further beyond the pale than his own. Suddenly, he received a slap on the wrist and retired peacefully, and the list was never heard from again. Such is military justice.

While it might be suggested that things like that happen in civilian justice with some frequency, it has always been the position of the military that their system is so much ‘stricter’ because the members are held to a higher standard. This is true, unless the accused is in possession of a big enough little list; or unless the potentially accused are themselves general officers – if it is unthinkable that a general would lose a case to a private, it is even more unthinkable that a general be put through a court-martial. Such is the military.

It is also a sign of the times that the Army prosecutor seeking to subpoena a civilian press organization, Truthout, advises them ominously in a memo that he is conducting “an ongoing criminal investigation”. The “ongoing” is theatrical, designed to impress upon civilians and potential viewers that what is going on here has the authority of some of the most popular TV shows.

The “criminal” is cagier. For quite some time the military played down the “criminal” aspect of its mandate, since while technically accurate and – so far – legal, there are substantive vulnerabilities in exposing to public examination the justification of calling military justice true criminal process. And for a long time in this country, citizens expecting to see some form of Perry Mason would have been disconcerted to see what actually goes on in military proceedings. But things have reached the point nowadays (see elsewhere on this site) that the civilian criminal justice system has actually picked up many of the military system’s worst habits. So by 1995 the military figured that the surf was high enough to grab more territory, and overnight everything connected with the system suddenly advertised itself as “criminal”: thus the Naval Investigative Service suddenly rebadged itself as the Naval Criminal Investigative Service and the Court of Appeals became the Court of Criminal Appeals … and so on all around the shop. It was a marvelous double-entendre, but irony is lost on the military mind.

But 1st Lt. Watada has put himself beyond many of the foregoing problems. His action clearly falls into the category of a genuinely military offense. If ever there was a reason for the military to be in the courting business, it would be for such charges as Captain Watada faces.

Additionally, he faces charges under one of the so-called ‘general articles’ (133 and 134) of the Uniform Code of Military Justice: Conduct Unbecoming an Officer. These cuties are separate charges, but if he is found guilty of the main charge, then he can also be found guilty of the violations of the general article(s) and, consequently, face even more prison time. This is one of the Good and Great Mysteries of the military system that, when deployed, can jack up an accused’s potential prison time to the point where only the most resolute or irrational gambler would want to risk a trial – hence the many plea-bargains that are still toted up as ‘convictions’ when it comes to ‘conviction rates’ and JAG resume time.

Watada, it is fair to say, qualified as ‘resolute’. And so he deserves to be seen.

But while he has effectively done an end-run around the many foregoing vulnerabilities of the military justice system, which might have protected him or staved off ‘conviction’, he has in his pursuit of integrity posed the Empire a far greater problem: if he claims to be disobeying an illegal order – which it is not only his right but his sworn obligation to do – then the legality of the order he refused to obey will have to be examined; the legality of the war itself becomes – at the very least – material to the case. To convict him the military will have to establish that the Iraq war was ‘legal’ – or at least ‘legal enough’ so that no mere 1st Lt. could take it upon himself to doubt it.

Under ordinary circumstances such fine points of Law and Justice do not bother the military; they are overrun as an anthill would be overrun by a rampaging elephant. But there will be a great deal of public attention, and such exposure has historically given even the darkest governmental malefactors great pause. Perhaps the military is banking on the fact that the gummint’s roadies in the press and right-wing blogosphere and reliable cheerleaders like the American Legion will be able to raise sufficient patriotic dust so that the actual questions at issue in the case will be overrun by a surge of patrioteering. It has worked often enough in the recent past.

Against such blandishments The People are advised to remain resolutely fixed on the actual issues at hand. No matter how distracting the vampire tries to become as it is pressed into a corner with the sun getting ready to rise, its whiney or blustery manipulations must be resisted and the task driven home to fulfillment. We will be free in no other way.

Tim Golden of “The New York Times” has a substantive article – “For Guantanamo Review Boards, Limits Abound” – about the military boards conducting review hearings at Guantanamo (www.truthout.org/docs_2006/010107E.shtml). This subject is not directly related to Captain Watada’s court-martial proceedings. But it gives an idea of what happens to legal proceedings in the military setting.

They are ‘administrative proceedings’, so they “were never intended to replicate judicial standards of fairness”. Yet the military claims that prisoners have a “viable opportunity to rebut the government’s evidence”. Just how it’s “viable” is not explained’. You’d figure that if they’d been gotten to Guantanamo, then they’d need a lot more than “viable”, they’d need ‘robust’ or even ‘massive’. But in best JAG fashion, the game is represented as being an expression of the military’s tender and abiding interest in meeting the needs of the person whom it has – if not kidnapped, then imprisoned. “At the end of the day”, intones the Navy officer in command of all the review panels, “it’s about giving the detainee flexibility and freedom to present his case”. All the right words, piously delivered. And by a professional: the officer was a pilot, and now, presumably, he has a god’s-eye view of life. Or godlike insight into the doings of earthbound mortals.

Cutely, it is pointed out that these panels are more rigorous than the battlefield tribunals required by the Geneva Conventions. We are not supposed to be informed enough or impolite enough to note that the Conventions require such battlefield inquiries in order to establish the status of uniformed combatants serving in regular armies, which is a more or less direct and uncomplicated task. What these Guantanamo panels are to do is to examine the past of the detainee – in no case a serving member of a military serving a nation with whom we are in a declared war – in order to determine if at any time he had in any way participated in a “global terrorist network”. On the basis of that he is to be kept in a cell for months or years. And this is “administrative”? Line officers with no legal experience, perhaps with no ground combat experience or experience of close-in relations in foreign countries, are to be making these type of decisions and wielding this type of power? Yet they claim to have a standard of evidence (very low) and a “rebuttable presumption of genuineness and accuracy that attaches to government records” – all rather legal sounding.

So are these panels ‘administrative’ or are they some sort of actual justicial proceeding? The same question, in a hardly surprising coincidence, can be raised about military justice itself, and have been over the course of two hundred years. So the bhoys have a lot of experience in trying to put a nice face on things.

Nor are any actual legal professionals allowed to interfere. Civilian counsel are excluded outright; military lawyers are shrewdly not permitted to participate because the panels are so rigged that for any lawyer to come near them as counsel would create professional ethical risks. The JAGs are not complaining. Nor are they trying to help stop these things.

While it can certainly be said that the military is only ‘following orders’ and that Congress has passed the legislation enabling this sort of chicanery, yet such ‘orders’ would be rather congenial to the military ethos. They want to keep people locked up, they have to put some sort of fig-leaf over it because it cannot be completely hidden from the public (any longer), and ‘legal proceedings’ – actually the appearance of them – do the trick nicely. As does the military justice system itself.

The military prosecutor in the Watada case may try to go after Captain Watada simply for advising other service-members that they too might choose to disobey, or might be obliged to disobey, the orders to deploy. This might be possible in the realm of the technicalities of the process. And thus the question of the war’s legality might possibly be avoided. But it’s iffy. Captain Watada probably has independent civilian counsel competent to operate in the military system (the average defense lawyer ‘off the street’ would not be familiar with all of the military system’s ins and outs).

Far more cogently, the media is going to be present, and it appears that at least some of the media can be relied upon to keep an eagle eye on the proceedings, and to have done enough homework to follow the ball. This has happened before; an Army officer was court-martialed in Haiti a dozen or so years ago. The officer had apparently seen that some local civilians under Army control were not being treated according to the standards that had just been enunciated publicly by the President. His formal and persistent reports that those Presidentially-proclaimed standards were being violated resulted in ... his court-martial. “The New Republic” – in a former incarnation – called the proceedings “a kangaroo court”. But it was the euphoria of the mid-‘90s, it was a military thing in a far-off country involving a people of whom we knew little … and anyway we had meant well in invading the place.

There is real ground for hope that in these days this court-martial will attract the seriousness of scrutiny that it and We deserve.