MILITARY COMMISSIONS-MILITARY JUSTICE

OH YEAH

We are informed that the President is considering allowing guilty pleas for detainees, allowing full trials to be avoided.

As ‘The New York Times’ reports, “the provision could permit military prosecutors to avoid airing the details of brutal interrogation techniques”.

Neat. Since several of the detainees have stated that they are looking to complete themselves by “achieving martyrdom”, it’s a two-fer: the government gets to get rid of them, while avoiding having to have its dirty (bloody, filthy) laundry aired in public, and the condemned get their last wish in full. A three-fer, actually.

A four-fer, even: the military lawyers’ guild gets to avoid having its own far-too complicit involvement exposed. They remain, among far, far too many of the nation’s reporters – and even some influential and otherwise skeptical blog-meisters – as ‘the good guys’.

And their system, in all the arranging of the scene, remains cast as a ‘justice system’. After all, “U.S. military law, which is the model for the military commission rules, bars members of the armed services who are facing capital charges from pleading guilty”. Marvelous. One recalls Stalin’s 1936 Constitution of the Soviet Union, the text of which gave Soviet citizens more protections before Soviet courts than even the U.S. Constitution.

For Uncle Joe it was a delicious two-fer: you garnered the praise of the world’s little people for so splendidly protecting your citizens from the brute police power of the State, and you guaranteed the outcomes that you wanted – Siberia or the wall.*

The kicker, of course, was there in that little phrase “Soviet courts”: since Stalin owned the judges, the jury, the prosecutors, the defense lawyers, the investigators, the interrogators, and the witnesses (all of whom could think, even if they would never dare say, ‘Lubyanka’ and ‘Gulag’) … well, the man could afford to be generous on paper.

This was the system that presented itself to the military and its lawyers when faced with Harry Truman’s 1946 demand, at the behest of many, many thousands of verrrry upset returning servicemen and vets, that the military clean up its ‘justice’ act. Substituting flags and some other American scenery for the dour Soviet furnishings, and after Truman won the 1948 election that they all hoped he would lose, the military smiled a butter-greasy smile and unveiled its “Uniform Code of Military Justice” in 1950. Truman harrumphed that it was the same-old same-old, but he had more pressing problems then, as the Pentagoons had shrewdly figured.

If you can imagine what a ‘plea bargain’ entails in civilian criminal justice, where you’d have to have a lot of money or the assurance of a direct, Cinemascope vision of angels right there in your cell in order to opt for a trial … if you can imagine that, then imagine what a plea bargain would be in the military system, as it embodies the very essence of the Stalinist dynamics. You’d have to have a death-wish to imagine you would prevail.

Which of course brings Us to the present proposal.

In a way, it’s a ‘plea bargain’ without the ‘bargain’. Although, since you have that death-wish anyway, maybe not so much.

David Glazier, a faculty member at the Loyola University Law School, rightly opines that “it’s going to lack international credibility”. And so it will. No other nation in the world considers ‘military justice’ anything else but a put-up job – no other nation, just Us. And many of the nations and peoples of the world are verrrry familiar with the fanged gentility of Stalin’s vampiric justice. But not Us … perhaps the greatest producers and consumers of vampire movies on the planet, and yet We don’t see them right in front of Us. Go figure. It would seem that if you put the right uniform on him, Dracula himself could carry on in broad daylight in this town.

And – in case anybody thinks that this is all far removed from Our many pressing daily concerns – recall that the Framers verrrry clearly caged ‘military justice’ in the seventh Article of the the Fifth Amendment, and that an awful lot of eager prosecutors in the civilian system – whether of the Right or of the Left – admire the military system’s ‘efficiency’.

Such admiration cannot end well for a Constitutional Republic.

NOTES

*You have to recall Felix Dzherzhinsky’s assertion about the true nature of Stalin’s (and all revolutionary and military) justice: “The [police power of the Revolution] does not judge, it strikes” – as nice a military sentiment as you can get from a non-military man.

And, following that oh-so-pretty Constitution of 1936, the 1937 orders to the secret police: for example, to the Western Siberia administrative department – you have four months to find 5,000 Category One Trotskyite terrorists and execute them, and 12,000 Category Two terrorists and imprison them for eight-to-ten years. All of these accused, would of course receive the perfect trial. Such ‘efficiency’! And all in four months.

Trotsky, of course, was Stalin’s rival for the hearts and minds of the Communist membership and the Soviet masses; anybody who thought Trotsky was anything other than a demon was a ‘terrorist’. And for all anybody knows now, if the secret police were behind in their quotas on a given week, they might not even ask you about Trotsky at all. Dosvedanie!

MILITARY JAGS AND THEIR SCHEMES

JAGGED SCHEMES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NOTES

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

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?

MILITARY JUSTICE HIDES IN PLAIN SIGHT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MILITARY JUST-AS JUSTICE

Josh White of the Washington Post writes about the very short sentence that a military commissions jury handed down in the Hamdan case, that detainee who was apparently Osama’s driver and auto mechanic for a while. (http://www.washingtonpost.com/wp-dyn/content/article/2008/08/09/AR2008080900800.html).

As you may know, the jury of military officers – probably of field-grade rank, with a lot of irreplaceable time and energy invested in their military career – found him guilty but handed him a sentence of five and a half years, which – given his time already incarcerated – means that he will only serve another five and a half months. The ‘judge’, a Navy captain named Allred, allowed the time served to count toward the sentence, and when Hamdan made his final comment that Inshallah (God willing) I shall see my family again soon, the judge piously intoned a benedictory ‘Inshallah’.

Both sides, prosecution and defense, claimed victory. The prosecution because he was found guilty, and the defense because the sentence was so unbelievably lenient.

Commentators have been trying to make sense in such a way that the military justice guys – the JAGs – and their system look good. And in this way, both ‘liberal’ and ‘conservative’ commentation arrive at a similar point: the military justice system works. To which I say: Hooey, phooey and baloney. As reason therefor, see below.

One particular commentary stands out: one Eugene Fidell, former JAG and now the head of a self-invented ‘National Institute of Military Justice’ – and also an adjunct professor of military law at Yale (thank ya vurrry mutch) – distinguishes himself by the particularly crafty way that he shills for the military system while seeming to be unimpressed with this particular episode. The lenient sentence does not surprise him, the article reports, because “the case against Hamdan was not particularly strong”. As if a weak case could ever stop the grinding wheels of military justice.

But further, he opines that the sentence “demonstrates, at the very least [lah dee dah], that you cannot count on a military jury to throw the book at people”. As shrewdly tossed a red herring as one is likely to encounter this side of perdition. Because the Characteristic Inalterable of a military jury is that it will do what it is told. Hence, if the sentence is lenient, then that was precisely what the military wanted to have happen.

And why so lenient? Because in symbolic terms it is the early months of 1945, and with judgment approaching with stern and measured tread, the shrewd professional military folk – especially the lawyers – are desperately trying to distance themselves from what they have done under orders of the now rapidly-outgoing … ummm … government.

And the cameras were rolling (figuratively, at least) and the eyes of the world were on the military system. To have its workings exposed to the bright light of day is not the preferred operational mode of military justice. Not unless the audience is totally in the bag. And this audience – comprised of the entire planet and a sizable fraction of an increasingly skeptical US citizenry – was not in the bag.

Fidell goes on to rhapsodize: “[The Hamdan case] doesn’t demonstrate the wisdom of the process, and it doesn’t illustrate the fairness of the process”. The only wisdom in the military system is of the Stalinist variety: own all the players and then for public consumption you can piously intone all the promises and benedictions you want. The vicious and cynical kabuki of his 1930s show trials were the templates from which the US military – under Harry Truman’s prodding, himself under pressure from huge numbers of angry returning vets – constructed a system that would guarantee its desired Outcome while piously ‘respecting’ the Process demanded by the American ethos. Charming.

Although the judge’s final sympathetic benediction in this case was probably over the top: his silky prayer was the equivalent, in the naval milieu, of a uniformed officer publicly offering a Shinto prayer in 1943. But if that’s what the bosses wanted, then it’s all good: Let’em see our sensitive, compassionate, merciful human side when you get in there, Allred, and don’t worry about overdoing it. Yes, boss.

It’s a wonder that any professional organization would countenance its members being involved in such a corrosive racket, but there’s money and reputation to be made and medals and promotions to be had. The psychologists jumped onto the torture bandwagon – piously, of course – but they took their cue from the lawyers.

In a classic example of how JAGs and ex-JAGs retain their professional affinities, one Gary Myers “who has practiced military law for forty years” opined that “military panels have a deep understanding of the command structure and are loath to punish low-level players when someone higher up is responsible”. Of course. And We the People can see that truth in action by considering the number of generals who were court-martialed for Abu Ghraib as opposed to the number of little people that were; or the number of general officers over the past 60 years who have been court-martialed, as opposed to the number of ‘low-level players’.

“They understand chain of command” he professionally puffs, inadvertently giving the game away. They most surely do. You don’t get to stay in the military very long if you don’t ‘understand’ chain of command, which effectively works out to doing what you’re damned told. Do Justice and the sky will fall … on you.

And they understand that military justice is 'combat justice' (from Roland Freisler's original Nazi) and that military law is the law-at-war ('Lawfare' in Pentagooneese). Law, to the military, is a weapon (making thus a very strange but lethal bedfellow for the 'critical legal theory' of the Identities' revolutions). Law to the military is not a referee; a military at war accepts no outside authority. Law to the military is not a finder of fact: 'Victory' is the only 'fact' that counts, and that Outcome must be most efficiently guaranteed. And it is. And now every buzz-cut or 'victim-sensitive' D.A. in the country wants to adopt this 'efficiency'. Oy.

And as if the military commissions themselves weren’t so repulsive, the still-in-office government is now asserting its right to keep its detainees in custody even if courts – any kind of courts – find them innocent or not-guilty or even if they finish their sentences. We recall that Hitler, faced with the recalcitrance of German civil courts – for a while in those early years of the Reich’s paradise – simply ordained that those arrested by the Gestapo or SS could be retained in custody no matter what the courts ‘found’; black vans waited outside the courthouses of Germany, for all passersby to see. For a nation so enraptured of democracy, and so fondly attached to Israel, this country sure has been adopting a lot of a certain German government’s policies and practices. Would they laugh you out of every studio in Hollywood, with a phantasmic script like this?

We’re going to see more of this sort of sleazy puffery on the part of ‘experts’ who are themselves in on the game, like doctors who prescribe medications because they’re paid by the drug companies. Ex-JAGs, JAG roadies, and all the press whom they grace with the easily-packaged ‘insight’ into the system.

There are no doubt a very few JAGs who are trying to do the right thing and may they be a blessing. They will be tolerated and even head-patted for as long as the current danger to JAG-gery lasts. But they will find no further career in JAG-dom. And if they’re trying to be decent attorneys of integrity, then being thrown off this ‘Titanic’ will be a life-saving, soul-saving grace.

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 …”