1st LT. WATADA AND THE ULTIMATE QUESTION

In her article “Watada follows the rules of military dissent” on Truthout (www.truthout.org/docs_2006/021207S.shtml) retired Colonel Ann Wright very competently reviews the appropriate manner in which a member of the military can and must dissent, when operating on that dangerous ground whereon one must consider the legality or illegality of an order.

Recent Watada-related Posts on this site have discussed this, and so have the Posts such as “Bishops Bomb” and Warrior Professionals” but Wright actually quotes the military-judge in the case and his bon-mot demands a riff. The defense attorney, Mr. Seitz, was asking Watada’s battalion commander questions about the opinions voiced by retired generals and others. When suddenly, sounds issued from Judge Head’s head to the effect that Seitz had to “move on” because he was getting too close to “the ultimate question”. The ultimate question. The Ultimate Question. As in “What’s it all about, Alfie?”

Military music can’t hold a candle to Burt Bacharach, and military justice can only hold a torch to whatever it comes near … but this ultimate-question business goes to the heart of the matter and it’s about as close as you’ll ever see military justice come to peering into its own abyss. Classically, the military Presider (‘judge’ is utterly misleading in the military context) wants to avoid The Ultimate Question. And well he should. And well that his bosses told him to. Because if there is one thing the military doesn’t like at all it’s Capital Letter Words (e.g. Virtue, Character, Justice, Truth … or, frankly, God). None of those CLWs are welcome unless they are completely subjugated to the military’s own CLW – Victory – and are only in the parade to provide window-dressing. Any hint of independence and the CLWs are out the door, out the window, off the base, out of the Service.

What 1st Lt. Watada did was to accept the reality and the authority of the classic CLWs and allowed them, in his conscience, to judge (precisely the right word in this context) the military’s and the government’s actions. Individual conscience is to governments and militaries what holy water is to vampires. And even modestly accurate and resourceful media coverage is to governments and militaries what sunlight is to a vampire. Thus we watched the vampire brood writhe and finally retreat, unholy smoke coming out of their heads. It was – as Mark Twain would have said – “a heart-warming spectacle”.

It also has to be said: the work of the media in this case went a long way toward nullifying the military’s massive initial advantage: not only did Watada face the absurdly biased dynamics of military justice, but he also faced a public now saturated with the many ladlings of Hollywood gravy poured thickly to mask the rancid meat of the National Crime State. Didja ever watch “JAGS”? That piece of utter and calculated fantasy is no doubt anchored in the minds of many as a true-story picture of what goes on in military justice (“JAGS” is gone now after a long run; the even more unreal “NCIS” still rawks on, packing in the patriotic, sleuthing couch potatoes week after week.)

For those who can recall “Perry Mason” or “The Defenders”, there was once a care in TV-land and in this county to respect attorneys who deployed their skills in the service of persons whose lives were at the mercy of the police power of the State. Hollywood also once took its stand against the police power of the State – and especially against the Jim Crow imperium of the Southrons – with such films as “To Kill A Mockingbird”, with Gregory Peck as the courageous small-town defense lawyer, Atticus Finch.

That changed sometime in the late-‘60s. The National Crime State required just the opposite, and the Southrons - surprise! - who hadn't even finished packing up their whips of righteousness after the collapse of Jim Crow, suddenly found themselves back in 'respectable' business again. Instead of weekly demonstrations of defense counsel saving the innocent accused from the stolid and sometimes corrupt hands of the prosecutors and the police, we started to see courageous and upstanding cops and prosecutors using (or bending) the law to nail verrry guilty – and very vividly guilty and unlikable – perps. Thus the supportive, enabling mythology of the National Crime State. Nowadays, it’s all about scientific crime-investigators, weird and almost non-human perps, and creased-pants cops who look like they wouldn’t know what a donut was if they ran over one while jogging in time to their favorite Army exercise chants before going home to cook dinner for the kids and lead the family in the Pledge of Allegiance after Grace. And a fine spectacle it is, indeed.

But spectacle, like the circuses that went with the bread, is not nutritious enough to nourish those parts of the brain that a Citizen has to rely on. You need much more grown-up food for that serious task. And much of it can only be done by reading. And judicious reading at that.

It’s probably no coincidence that the National Crime State hasn’t done much for actual education (although there is now enough official ‘security’ presence in many schools to police a small city). It will only be necessary, in the not too distant future, for individuals to ‘hear and obey’. No ‘speaking’ required or allowed. No thinking necessary or allowed. I’m not plumping for one set of Hollywood biases over another. I’m more concerned that We are able to distinguish Truth and stand by Truth in its hour of need (which ‘hour’ nowadays is 24-7, I’d say). Where are We going? Where are We allowing things to go? And, ultimately, What are We all about? (Hint: “We The People …”).

MORE GREAT WATADA

Over on Atlantic Free Press Jayne Lyn Stahl has a Watada article (“Conduct Unbecoming”, (http://www.atlanticfreepress.com/content/view/908/81/#jc_allComments).

Following the article there are Comments, and many of them – all civil and reasonable – quote assorted military documents.The assorted Commenters who quote chapter and verse of this or that military Manual or even Oath strike me as well-intentioned. But in military ops well-intentioned isn’t enough. Not hardly.

They are seeking to establish certainty on a field which is, at its deepest core, uncertain. In the area of military enterprise, American and Western tradition resembles the planet itself: on the surface hard and solid and conforming to physical laws, but at its core it is hot and molten and semi-fluid and responding to pressures we cannot fully predict and ‘laws’ we cannot fully comprehend.

This is the result of the American and Western tradition, especially as formulated after World War 2. This tradition relies – as any Democracy must – upon the moral character and the moral agency of the individual Citizen-soldier (notice which comes first). And with that authority of the moral agent comes the responsibility of the moral agent to use his skills to live up to his authority and exercise it properly. This has always – whether we took the trouble to remember it or not – distinguished the soldiery of a Democracy from the soldiery of Empire.

This is the reason why the embrace of military service in a Democracy is such a freighted public act: the individual Citizen commits to this fundamental task. And is bound to it not only by responsibility as a Citizen and as an individual moral agent, but also by American and military law. Nuremberg executed German officers who claimed they were only fulfilling their oath when they gave orders and carried out orders that were clearly in violation not only of international practice and justice and humanity, but also were – in Douglas MacArthur’s thinking – a violation of the very essence of a soldier in a Democracy: “to defend the defenseless”. And thus too did we execute General Yamashita for his command role in the Bataan Death March.

Watada confronts precisely this ‘core’ ground: if he is required by law and regulation to disobey any illegal or unlawful order, then he must exercise his moral agency by judging the order. While he has no right to disobey a ‘stupid’ or a ‘dumb’ order (Yet how many heroic and vaunted soldiers have, and have been decorated for it? How many have given such orders, gotten troops killed, and still prospered in their military career?) yet he must take his stand against an illegal or unlawful order. Whether the order to report to an unlawful war is itself illegal, or whether only the war itself is unlawful strikes me as a distinction without a difference. And who among us doubts that the current Iraq War is unlawful and illegal according to national and international law (Watada was willing to go to Afghanistan instead)?

In this type of ‘core’ engagement, quoting chapter and verse of a Manual is the equivalent of Braddock marching his redcoats in column through the Pennsylvania woods, hoping that their intense faithfulness to the Manual would see them through to success. Not hardly. In the uncertain and fluid operating environment of the ‘core’ Battlespace, skills are required which are hell-and-gone from the usual soldierly skills of obedience and conformity.

This is hugely uncertain Ground, and it is not at all in the best interest of militaries to allow its junior members – certainly – to be confronted with a ‘core’ engagement. The solution is to prevent things from coming to this pass by the brass not letting unlawful and illegal wars develop in the first place. Had fewer brass been unwilling to endanger their careers and their promatability in the run-up to this war, then this stampede might never have started. But with all their oaths and Manuals and medals, the brass did not take a stand, not even to Congress (such as it was).

And as for Watada being disloyal or unfaithful to his comrades by failing his unit … many noncoms and J.O.’s stayed faithful to their units on the Eastern Front and in the ghettos of Poland and the villages of the Ukraine, on the Bataan Death March, and in so many other places. Having failed to engage the ‘core’ when the situation required it, they and the troops to whom they remained loyal all died in a bad cause – for all their loyalty and heroism.

Militaries serving governments of the Dark Side – Nazi Germany, Imperial Japan, Soviet Russia – have always sought to get rid of those soldiers who ‘wavered’ or ‘doubted’. Such could be shot or sent to Siberia. The best the Pentagoons could come up with to perform this role was the military-justice system, which does its best under the demanding limitations of a Democracy that respects the individual moral agency of the Citizen-soldier. But this is also why there is such a press on by assorted groups to imperialize our military. Make no mistake: to imperialize the troops is to de-Citizenize the troops. Just as sure as an Empire does not require a Constitution and thus does not require The People. (We as a People are facing a ‘core’ political and cultural confrontation nowadays, just as our soldiers – exemplified by 1st Lt. Watada – are facing a ‘core’ military confrontation.)

The standard military ‘world’ of certainty and obedience and loyalty, so simple in a fundamental way, is not surprisingly an object of nostalgia and a model for making one’s way through the jungles of life. But what faces us all here is a Vertical drop to the ‘core’, which urgently requires a Vertical ascent to the heights of one’s character and virtue and authority as a Citizen-solider and as an individual human being and moral agent.

We owe 1st Lt. Watada a deep debt of gratitude. A moment for that – and then each of us must get on with the great unfinished work lying urgently before us which he has thus far so nobly advanced.

IT ONLY LOOKS LEVEL

The ‘judge’ in the Watada case has declared a mistrial. Scott Galindez and Geoffrey Millard report on Truthout (www.truthout.org/docs_2006/020707Z.shtml) that this constitutes “a stunning defeat for military prosecutors”.

Not hardly. Their exuberance – bless them – rests on the assumption that the ‘judge’ and the prosecutors are different agents, not therefore ‘working for the same side’; if that’s accurate then the ‘judge’ has freely and independently made a judgment ‘against’ the prosecutors. Military justice being what it is, however, that scenario is not possible.

I tend to think that the ‘judge’ realized – or was told to realize – that the whole thing was going south and had to be stopped before the court-martial itself began to resemble the Iraq debacle that sparked it.

Things reached this pass partly because the prosecutors pigged things up; but then, in a rigged system (and don’t think the JAGs don’t know it from the get-go) you don’t need brains to be a ‘prosecutor’; you’re a shoo-in to win no matter what. So they tend not only to be not so sharp, but kinda cocky and in-your-face. And most of the time that’s enough to get them along quite nicely, thank you. Let's not forget: the official JAG advertisement that caught their eye in the law school journal was of a set of handcuffs - and that turned them on.

BUT BUT BUT this time the media were there. It should raise the reddest of flags that the military justice system does not work smoothly when independent agents (the media, or some of them anyway) are watching. Like visiting Chinese Communist operas, voices start to wobble and strain when the performers suddenly realize that the audience in this city isn’t applauding lustily at the appointed five-minute intervals like they do in Beijing. Like small-town Southron justice, the judge ain’t so cocky and the deputies don’t chaw when they suddenly realize that an Associate Justice of the Supreme Court is sitting in the back (a plot from a ‘30s or early ‘40s Hollywood flick; it may not work today – the deputies might just keep chawin’ secure in the knowledge that the Court thinks they’re doin’ a heckuvva job). In the Watada matter, it is not the Supreme Court but the Press that is watching with a gimlet eye. The ‘success’ of the military smoke-and-mirrors show precisely requires that it not be viewed with a gimlet eye.

Iraq was also once classed as a smoke-and-mirror where everything would work right if you just kept your gimlet eye closed and everything would be on the level if you just held your head at the right angle. But now ‘reality’ has proven to be alive and well; its rumored death was greatly exaggerated. And it is awesome and awefull in its implacable power. We are become like Japan in the Godzilla movies: we have awakened a monster and pissed it off. Or, in the somber assessment of Admiral Yammamoto after Pearl Harbor: “I fear that all we have done is to awaken a sleeping giant … and fill it with a terrible resolve.” Our national existence is going to become the Ur-reality show from hell. The usual viewership will no doubt be unequipped to keep up with it.

So this ‘judge’ simply provided a handy smokescreen behind which the battered Army forces could effect their retreat and stave off catastrophe. He took a closer look at the documents, a noble undertaking which he had until now studiously avoided. And suddenly there is grounds for backing away; a sort of military version of “Let’s Call The Whole Thing Off”. Potayto was actually Potahto and thus the mistrial is declared loudly to muffle the clanking of the retreating military machinery.

The defense perhaps figured that this was in the best interests of its client, and that may very well be. The issue may never again be joined, the military may bargain quietly but vigorously now for an ‘out of court settlement’ or the face-saving equivalent thereof. Still, having now determined the defense’s strengths (among which is The Press, and I assign that title with respect) the boyos may simply have retreated to consider how to mount a successful assault against some point other than the defense’s strengths. My guess is that the Army will try to do things quietly. Vampires aren’t known for persisting in public, daylight operations. Indeed, they get to be old and strong precisely by not going the celebrity and publicity route; they let their human roadies do that.

And if I might offer one suggestion: will the esteemed (not ironic and not sarcastic) members of the Fourth Estate puhleeze stop framing military-justice in terms of its similarities to real Constitutional process? To say “the military panel” is “similar to a civilian jury” is to say that Al Capone is ‘the noted Chicago businessman’. The similarity is so insignificant next to the actual differences that your description almost rises to the level of misdirection. A civilian jury (however much it may nowadays have been stampeded by sensational pretrial coverage) is and is designed to be a random gathering of independent citizens with no vested interest in anything except – it is piously to be hoped – the Truth of the particular case at hand. A panel of military officers is the equivalent of getting a bunch of eager-to-be-kept football players together at a rubber-stamp session the coach has called to back-up his dismissal of another player. The two groups – jury and panel – are clearly, it is to be hoped, dissimilar.

TRUTH IS MARCHING

The latest report on the Watada trial is on Truthout (www.truthout.org/docs_2006/020707K.shtml) in an article by Bill Simpich and Scott Galindez.

Three points strike me. First, that 1st. Lt. Watada’s comments that “to stop an unjust and illegal war the soldiers can choose to stop fighting it” are characterized by the prosecution (and thus the Army itself) as “disgraceful”. That Watada is actually stating LESS than what this country declared at Nuremberg (i.e. that soldiers MUST refuse to participate in illegal and unjust military orders) escapes the Army’s notice. That had this country chosen to discover Wehrmacht personnel who had chosen to stop fighting because they judged the war to be unjust it might well have given them a ticker-tape parade. (Well, the old ‘America’ would have; the postwar National Security State might well have had them bumped off; the Nazi rocket scientists were quickly absolved and baptized into the cause of democracy, almost as easily as Pastor Haggard – the crystal meth having apparently worn off – has just declared himself to be heterosexual without a doubt; he is, of course, certain that he is “saved”, nor do his colleagues find any reason to disagree.)

Second, that there indeed is a God and that He worketh in mysterious ways – or, as Tolkien noted, the evil that evil entities do oft works to assist the good folk who oppose evil. Having exposed and compromised himself irretrievably by tossing out almost every witness and argument the defense hoped to introduce, the military judge – the marvelously-monnikered Judge Head – was confronted with the bald fact that his own prosecutors then went and opened the door for the key elements of the tossed material to come back into play. They brought in a military ethics expert who, following Watada’s own commanding officer, opined that officers were under no obligation to follow orders that they think are unjust and illegal. Was this military fact news to Judge Head? If so … ? If not …?

Third, that this ethics expert, Dr. Swain, incidentally brought up an old ghost: the ghost of court-martial as an ideal, the professional convening of competent practitioners to discover fact. Swain said “If they [officers who decide an order is illegal] make that determination, they have to be right. If they’re not right, they have to expect to be held accountable.” A court-martial would be convened to determine that fact. This ideal vision is hell-and-gone from the show Judge Head is running (no doubt under orders, unspoken but clear): this is a kabuki exercise the object of which is to declare the defendant guilty and get on with it. For which purpose, ‘fact’ and ‘truth’ (whatever that might be, as Governor Pilate pithily put it) will only get in the way, will only un-simplify and de-clarify what should be an open-and-closed case: What is Truth? We’ll have none of that here, gentlemen! Harrrrrrumph, Harrrrrrumph! Truth is a slam-dunk! Convict him and we will be greeted as liberators! Ach ja!

The current military-justice approach as it has evolved (or devolved) is now the model for civilian justicial praxis throughout the land. In so becoming it has created a monstrous threat to the Republic and to the American ethos and to The People … this is a truth, a reality, that is only just starting to reveal itself. Prosecutors all over the country dream of being able to do it the military way: just reach out and grab somebody and – the amenities having been decently observed – slam-dunk the conviction and get on with it.

Far far far too many folks on the Left and on the Right think that this is a good idea. Woe to the Republic because of them.

But the presence and the active inquiry of the media has opened a path, a Landing Zone. And along that path Truth may march. Glory hallelujah.

WOBBLY ON WATADA

Tomas Tizon has filed a story about the Watada case, "Stand Against Iraq Sends Officer to Trial" (http://www.truthout.org/docs_2006/020507K.shtml).

We can glide gently by the human-interest elements and - at the very end - focus on the comments of Kathleen Duignan, the "Executive Director" of the National Institue for Military Justice, an organization which is to JAGs what "The Friends of the Italian Opera" was to those dauntless Italo-American businessmen of 1920s' Chicago and New York.

As so often happens in these things, the Watada case is getting 'uncontrolled' media attention, meaning that the NIMJ can't simply call a press conference at its whim to pump its calculated spin into the hungry maws of the media brood. In such situations - as any military commander knows - 'things' can happen that are not always to your advantage: an acute or robust challenge might suddenly present itself not to your strongest force, but rather to one of your garrison or window-dressing units.

Thus it appears that Executive Director Duignan must have been minding the shop when the media called for a comment. She clearly tried to sound nice as she faithfully trumpeted the military line (which is always a defensible fallback position when you'd rather not step into the squishy stuff): "The idea is when you put on a uniform, you put your personal opinions to the side", quotha. This must be the general line of defense that she saw sketched on the wall maps.

But of course, as can happen in this sort of thing, she said more than she would ever have wanted to. She faithfully parroted the military line, but it is precisely the military line that gives its game away.

And a nasty, vicious, duplicitous game it is: One is not supposed to act upon one own's opinions as to one's orders. Fair enough, indeed. Do I really feel like I should drive this tank from the north end of the marshaling yard to the south end? It's not a question a soldier can entertain.

But US military law and our own stated Nuremberg principles and international law do indeed hold invididual soldiers responsible for carrying out illegal orders. (And let's not even get started on 'immoral' ones.) So now: Do I really feel like I should drive this tank over that bunch of civilians standing at the far end of their own back yard? becomes a much more cogent and complicated question indeed.

And here is where the military and its 'justice' system betray their actual operating principles: if you as a soldier are responsible for ensuring that you do not carry out an illegal order, then you as a soldier are going to have to form some very clear opinion as to whether a particular order is indeed - as best as you can make out - 'illegal'. But now when 1st Lt. Watada does precisely this type of formulation in the matter of being ordered to a war that nobody except the two Chief Inmates any longer denies was started with lies and sustained through the treacherous deployment of even more lies, the military piously but grandly seeks to whack him, claiming that 'soldiers don't get to choose'.

Heads the military wins, tails the soldier loses. This is the fundamental operating principle of the military justice system, it always has been, it always will be, there is no escaping it, and all the JAG and JAG-roadie efforts to spice up that core rotteness with complex and arcane confections is simply adding a further layer of rot.

It's been said here before and it is now said here again: covering a military-justice story is like approaching a coven of vampires with holy water. They'll be nice until they can either get you to go away or they can bite you. Meanwhile, whomever it was that they were gang-biting will still remain behind them, almost out of sight. Like Roddy McDowall going up the stairs in the last act of "Fright Night", you have to make yourself take each step. But you have faith in Truth, and you don't trust toothy night-creatures, no matter how wide their smile.

WATADA NADA

Over on Truthout (www.truthout.org/docs_2006/013007J.shtml) there’s an 01/29 AP piece about the Watada trial. The government is dropping two counts of conduct unbecoming. Such a generous and benevolent sovereign, our military. As Ike would say: Yah.

The military justice system has been dealt with elsewhere on this site (“Bishops Bomb”, “Military Just-As”, “Military Justice is No Music” – Parts 1 & 2, “Warrior Professionals”). And the Watada case has been discussed (“Military-isms”).

As indicated in the latter Post, these General Article charges are filler, put in there to beef up the potential jail time and induce any soul foolhardy enough to want to stand up and defend himself to think again and just plead guilty. Siberia being a given, why piss Stalin off by taking up the court’s time? Say you’re sorry, get trucked back to the Lubyanka, and get ready for your long journey. Meals are provided. Be hapski. Your military defender may visit you, perhaps bring a chocolate bar for after your supper. They’ve been known to do that, you know. A glorious system, is it not? Now march.

The reporters are off the hook – they won’t have to show up and testify. But they will ‘stipulate to’ the testimony they would have provided if they had been made to come. Lt. Watada’s civilian defense counsel tries to put a brave face on it: the journalists are “shielded from the heavy hand of the government”. I don’t see how. Yes, the reporters are spared (and the media deprived of) the photogenic footage of reporters forced to testify in a military ‘court’ (yes – the quotes … they are not mean to ‘scare’ but to indicate irony, even sarcasm). Before a military ‘judge’ (ditto). (Then again, the way things are going in the country just now, maybe we should be ‘scared’, certainly more so than most of us right now.)

The reporters are off the hook. But we must hope and pray that they don’t consider themselves off the case. This war, this ‘justice’ system, the Pentagoon bosses who so cynically run it, the oily roadies who spin it … all need to have some serious tire kicked.

But the military is off the hook, too. It doesn’t have to face the prospect of that footage either. And just how much do you want to piss off the media? One of the great rings of defense around the fortress prison of military justice is precisely the media’s fawning or unthinking acceptance of this thing as a legitimate and credible system of administering honest justice. And if they go and piss off the press, then such telegenic flacks and roadies as the National Institute for Military Justice will lose the traction that their smarmy, avuncular lecture-commentary is meant to provide: Ah yes, the wonders of our system – here, let me show you just a bit – but, alas, so much is classified, or beyond the civilian mind – well, just trust us, it works fine, balancing the needs of the government and the rights of the accused to a nicety. Yah.

“They’ve already determined that he’s guilty”, reports the defense counsel. Well, of course. You don’t go and start a military operation if you haven’t yet identified and isolated the ‘enemy’ whose undoing is your tactical objective. (They tried that in the War on Terror, and look what’s happened.) These military justice ‘trials’ are nothing of the sort, and the word ‘trial’ shouldn’t be used because it confuses American and Western jurisprudence with the military operation that courtsmartial fundamentally are. A court-martial is the JAG equivalent of shock&awe, only unlike the actual field operations, the JAG version is guaranteed – think ‘shooting fish in a barrel’. But they get pay and resume notches and sometimes medals for this stuff. And so do the ‘judges’, who are also JAGs. It’s a marvelously constructed system. “What’s the Constitution among friends?” a Tammany-era pol once asked. Even more so, what’s the Constitution among officers and gentlemen?

And they are all honorable men. As the Army spokesman says: Watada’s failure to deploy “is something the military takes very seriously”. Yah. It’s dizzying to try to follow just what things the military bosses take seriously these days. Soon-to-retire generals and admirals buying weapons systems from corporate honchos who then hire them for big bucks as soon as they take off the medal-suit for the last time? Billions of budgeted dollars that cannot be accounted for by the same? Refusal to stand up, put your bemedalled career on the line and speak military truth to power when your troops’ lives are at stake? Nope. Not so serious. But a junior-officer who takes his stand against a war that was started with lies and has been continued with more lies and whose loss is being veiled by even more lies … well now THAT is serious. Harrrrrumph! Yah.

The Army also wants Watada to do at least 18 months in prison. Anything over 12 months would – the law being what it is just now – make him a ‘felon’. Imagine: serial killers, bank robbers, car-jackers, some – at least – of the ubiquitous sex offenders, murderers … and 1st Lt. Watada. The most honorable generals have decreed. Yah.

A damned shame that the ghosts of Arlington can’t speak. But then again, the Universe being what it is, just maybe they will, in their way. Listen for them. They know. And they speak Truth. And We need to hear that.

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.