EDWIN NEWMAN AND PROPER GRAMMAR


A brief Post.

It was revealed that Edwin Newman had died on August 13; his family wanted time to grieve privately.

One of the generation of American newscasters who lived through World War 2, he trailed clouds of the glory of journalism in those times. Provided with the perfect foil of a truly and rather totally evil Third Reich and the seemingly-triumphant onrush of the Axis Powers, journalists – Ed Murrow comes most vividly to mind – rose to the occasion by telling it the way it was in real time; Murrow did broadcasts from London in the midst of the Blitz, on an overseas hookup with Americans huddled by their radios in the living room.

It didn’t really do American journalism much good when, once the Cold War settled into something of an established rhythm, and the genuine evil of Jim Crow had had the legal foundations knocked out from under it by the Civil Rights Act of 1964 and the Voting Rights Act of 1965, American journalism started to create its own ‘truly and totally evil enemies’ to keep things going, accepting pretty much whole-hog the claims of this or that Identity of the newly-raised-up Identity Politics; each needed its own ‘evil enemy’ and each needed the media to amplify that claim in order to lubricate this or that demand and this or that agenda.

Herbert Marcuse (see immediately previous Post) and Saul Alinsky (Post forthcoming) were two of the ‘intellectual’ influences who helped this unhappy dynamic along. Marcuse, building upon his own experience of the Third Reich (from which he prudently escaped to America in 1933), joined the French postwar intellectuals in mistrusting ‘majorities’ and sanctifying the opposition by ‘minorities’ – which was a fine elegy on the underappreciated native German opposition to Nazism back in the day, but did not translate well to a working democratic Republic (for all its incompleteness and faults) like the U.S.

Alinsky – not to steal my own thunder here – tried to ‘baptize’ European ‘revolutionary’ methodology by simply setting it forth as merely a ‘Technique’ that could be translated, along with its presumptions (anything ‘established’ is probably baaad, and it’s a Machiavellian world deep down so ‘ethics’ get in the way of doing a Great and Good Thing) to any country – an established and working democratic Republic, say – without any ill consequences. After all, since the Established Thing is baaad anyway, then ill consequences are merely going to hasten its demise.

Which, alas, proved to be too, too true. And here We are today, trying to keep Our balance on the increasingly tilting deck of Our once great Vessel. Such is Our Modern American Reality and will be, now, for a long, long time. If not for the rest of America’s time as an existing entity on the planet.

Anyhoo, Newman had a thing for the English language – not only its beauties and nuances and tremendous capacities, but also – in an Orwellian sense – as a conveyor of truth. A language developed its rule of grammar for no less a reason than to achieve reliability and clarity in the conveyance of truth – perhaps, if you want to get ontological about it, Truth.

This sterling and – as it turns out – indispensable maxim was always annoying to kids: Grammar seemed to a school-child in the pre-1970 era as nothing less than or more than an arbitrary punishment cooked up by souless and ‘no-life’ old teachers to ruin an otherwise groovin’ afternoon.

And to impatient ‘revolutionaries’ Grammar was simply one more level of an oppressive and deceitful civilization’s layered fraudulence designed to distract, derail, obstruct and in divers other ways oppress everyone who didn’t belong to the Club. Crush the infamous thing!

And the Seventies - that queasy decade – were trying hard to get beyond the ‘uptight’ Fifties while also getting beyond the un-showered, unwashed denims and beads of the Flower Children of ’67 and the in-your-face combat-clothed Yippies of ’68. Enter polyester and Disco, and ‘loose’ – about everything.

Grammar clearly had to go.

It was not only ‘oppressive’ but ‘elitist’, requiring folks not used to employing it to jump through Honky’s hoops. And, of course, it was indubitably a sinister oppression designed by ‘mehnnnnn’ purely for that gender’s world-historic and sempiternal project of keeping non-white, non-male, youthy plants from running free along the Garden floor. Happy-face, Grammar surely was NOT.

Well – that was then. But since the U.S. is still – as of this writing – a going concern, then Grammar must still have a role to play. To the extent, anyway, that truth needs to be conveyed. (And I leave it to you to consider just how vital a priority that has become nowadays.)

I want to give just one example of the importance of Grammar.

The Framers – for whatever else you may have against them – were classically educated and a number of them were lawyers who had been trained in working in the fields of the Law. Then, as now, they knew the value of Grammar: a single comma could mean the difference between a very good and a very bad outcome, for the clients if they were in civil practice, or for a nation if they were engaged in the task of ‘nation-building’ or – more specifically – ‘government- building – which is precisely what they were up to at the Constitutional Convention in Philadelphia.

In the Fifth Amendment (part of the first ten Amendments, known as the Bill of Rights) they took up the question of criminal liability and process. Just how much scope should the government have in deploying its sovereign punitive power against its own Citizens if a Citizen were accused of a crime?

They answered with the careful text of the Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger …”

Note that comma there after “forces” and its mate after “Militia”. They serve a huge purpose: they add “Militia” to the main thought that the only time a Citizen in uniform can be held to answer for a serious crime without the assessment of a Gran Jury is if he is in the land or naval forces – or in the Militia – when those forces are operating in time of War.

It follows that if a Citizen is even in the military, he still has to be indicted by a Grand Jury – an independent jury of Citizens called from their usual daily occupations to assess whether the government’s attorney has enough of a case to warrant an actual indictment; and if not, not.

If you think about it for a minute, this is huge. The Framers were so cautious about the government – and the military – wielding the sovereign criminal power that unless there was an actual declared War going on, they didn’t even allow uniformed service-members to be put on trial unless a Grand Jury approved the merit of the government’s case.

That is quite a bit of fencing-in that the Framers did.

Throughout the 19th century the military chafed at this stricture. It did not wish to share judicial authority with ‘civilians’ – either civilian members of a Grand Jury or civilian judges. It wanted its court-marital authority to extend over all military personnel regardless of whether there was a War on or not.

It got so bad that in the 1890s the Supreme Court, which had to keep dealing with ‘military justice’ cases throughout the 19th and 20th centuries, finally opined that there were two ways of ‘interpreting’ that troublesome set of commas.*

The military understanding of the Grammar was that the phrase “when those forces are operating in time of War” only applied to the Militia. Although the rules of Grammar would have then required that there be no comma at all after “Militia” – but even THEN the “when those forces” phrase would STILL have applied to both the “land and naval forces” and “the Militia”. And, of course, the word “forces” in the “when those forces” phrase precisely repeats the use of the word “forces” in the first phrase about “the land or naval forces” … so it sure looked clear as a bell that the Framers didn’t want the military and its drumhead-courtsmartial afflicting Citizens, even servicemen, any more than was absolutely and minimally necessary.

Acquiescing to the government’s urging in 1895, the Court decided that there were two ways of ‘interpreting’ that pesky comma: it could, as clearly indicated in the general understanding of the rules of grammar, apply in such a way that the “in time of War” stricture applied to the army, navy, AND the Militia.

Or, the Court invented, there was an alternative – non-conventional interpretation: which, by the by, was exactly the opposite: despite the established rules of Grammar deployed by the oh-so-careful Framers, a reasonable person might opt for the alternative explanation that the commas were there merely for decoration and, anyway, applied only to “the Militia” and not to “the land or naval forces”.

In other words, the word ‘horse’ might be taken to mean any member and only any member of that group of living entities classified in the Linnean system as Equus caballus. OR the word ‘horse’ might be taken to mean anything NOT a horse. And the Court – giving some harrumphy thought to the matter – decided to opt for the second ‘non-conventional interpretation’. (A quick brush-up on Linnean classification is here.)

And so, based on that jaw-droppingly whackulent ‘interpretation’, the Court tried to solve the problem of just how much authority and scope the Constitution permitted to the ‘military justice’ system by claiming that Grammar was soooo flexible that it could mean either ‘A’ or ‘not-A’ with equal ease.

After a performance like that, it was only an afterthought when, after hearing the innumerable complaints of the Greatest Generation about ‘military justice’ as they came back from World War 2, Harry Truman told the Pentagon to get a Constitutional system of justice and – after waiting to see if he would lose the 1948 election (he didn’t) – the Pentagoons came up with what is now known as the Uniform Code of Military Justice.

If you are ready to believe a number of impossible things before breakfast, then you are ready for the military’s gambit: borrowing Stalin’s shrewd idea about courts and trials that if you control all the players and thus can be assured of the outcome, you can then make all the grand and glorious guarantees and assurances you need to (Stalin's mid-1930s Soviet Constitution actually provided on paper more guarantees of civil rights and liberty to Soviet citizens than the U.S. Constitution provided to Americans).

Thus – to this day – the military equivalent of the Constitution’s independent, multi-membered ‘Grand Jury’ is a single officer, subordinate to the general or admiral who decides to bring the court-martial proceeding in the first place. And if the Boss doesn’t like the recommendation of the underling (assuming any military subordinate would risk promotion and career to give any other recommendation than the one the Boss wanted) then the Boss can change it.

Which pretty much guarantees that the accused will go through the court-martial mill: where, by the by, the military owns, employs, and operates the judge, the jury, the prosecutor, the cops, and most of the witnesses. Oh, and the defense counsel. On top of owning the defendant, of course.

All on the basis of a couple of commas in the Constitution, the established rules of Grammar, and a Supreme Court that was looking to get on the national bandwagon and defer to the military.

You can see where things can go, once Grammar and the value of ‘words’ is rendered fungible and turned into the conceptual equivalent of play-dough.

When the Executive and Legislative and Judicial Branches can play a game like that, AND the Pentagon to boot, then not only Grammar but Democracy and the Republic are in biiiiiig trubble.

Upon Edwin Newman be peace.

I hope he has better luck working for Grammar from ‘the Other Side’ than he did when he was struggling down here in this increasingly dark Vale of Tears.

NOTES

*See my Posts here and here.

CHASE MADAR AND GITMO

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

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

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

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

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

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

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

Not that it’s done the kid any good.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ach.

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

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

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

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

NOTES

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

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

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

****See here and here

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.

BE YE NOT DECEIVED

There’s an editorial in ‘The Los Angeles Times’ going through the pros and cons of the US participating in the International Criminal Court. It’s well worth a look.

After Nuremberg, the nations of the world largely saw a value in erecting an international tribunal to handle cases of genocide, war crimes, and crimes against humanity. Especially when committed by nations or by individuals whose national governments were unable – or unwilling – to prosecute them. A Treaty containing the plan was finally circulated to the nations by the UN in 1998.

Nicely, the piece notes that Clinton wasn’t all that happy with the idea. He waited until the very last days of his Administration before signing the treaty, but then never sent it to the Senate for ratification. Cute. Bush the Egregious, of course, “unsigned” the Treaty in 2002, and then went so far as to get a supine Congress to pass a frakking law authorizing the Executive to invade any country that dared to hold a US citizen on any such charge, and rescue same.

You’d think that any American aware of what went on in World War Two would approve of the whole idea of an International Criminal Court for war crimes and genocide. And whether ‘liberal’ or ‘conservative’. The ‘liberal’ would want one more arrow in the quiver of ‘justice’ for the afflicted, and the ‘conservative’ would want one more arrow in the quiver of law and order.

But no. After all, apparently, in World War Two the world-powers who perpetrated aggressive war and torture for their own enrichment and expansion were the Third Reich and Imperial Japan. But nowadays the world-power is (fill in the blank). Nor do the revolutionistas of the American Left nor the God-authorized invaders of the American Right care to acknowledge any earthly power above their own.

Usually, in the popular American police procedural, when somebody opposes ‘going to court’ the cops and the viewer can conclude with assurance that said person is guilty as sin. Why that is not true in the ongoing soap-opera that national news has become is a subject Rod Serling would no doubt have wanted to present for your consideration.

Saving itself from saying too much, the editorial firmly states that in the matter of countries whose politics preclude prosecution or whose courts are in thrall to the controlling regime, “the notion that this could apply to the United States is laughable”. I would say that “the notion” is certainly open to discussion, but – alas – far too serious for it to be a laughing matter.

And of course, what exposure would it create for Our Israeli ‘ally’ – the one that refuses to sign a treaty of alliance with Us ? The one that killed Our sailors in cold-blood on that bright June day forty-two years ago? The one whose senior military guidance to the troops currently dealing with Gaza is to “take a page from the Warsaw Ghetto”? You recall the Warsaw Ghetto: where the Germans walled up an entire population of Jewish men, women, and children in a very small urban neighborhood , and then attacked it with troops, artillery, planes – and destroyed them like fish shot in a barrel. The most senior German generals were hung – by the Allies – with the memory of that ‘operation’ fresh in everybody’s mind.

The idea of an International Court along the lines of Nuremberg seems to be making a lot of self-proclaimed ‘good guys’ verrrry uncomfortable. In standard police procedure, when apparently ‘innocent’ folk suddenly get verrrry nervous in the mere presence of a police officer, you want to look more carefully at them and what they might be up to. The claim is that the Court might be used improperly, but I’m sure Al Capone would have liked to have voiced the same misgivings about courts and law enforcement in general as his reason for avoiding the subject. If memory serves, several of the defendants at Nuremberg did raise the point – but their prior actions had spoken louder than any words they might have come up with to escape the consequences of their spree.

Like a resourceful vampire, the military JAG Corps keep turning up in these things, trying to find a way in for itself – getting an invitation over the doorstep. A former Navy lawyer-admiral, John Hutson , proposes with sly innocence that perhaps American participation could be vetted by a panel of legal experts “from outside the government”. Say – oh, ummmmmmm – a panel of retired military lawyers. Yah. Oh yeah!

“Outside the government”? These are so-called lawyers who have made a career out of subordinating their responsibilities to truth and justice to their responsibilities as military officers with promotions and careers to keep up. Outside the government? These are the worst form of apparatchiks – at least the outright political appointee is a hack who makes no pretentions about it. The JAGs insist on the respect due to their ‘professional character’ as attorneys committed to ‘justice’, all the while taking their pay and promotions and medals and ribbons and perk-bloated retirement from the hand of their master.

But of course, it would be a great two-fer: JAGs in such a position could protect their official masters while also protecting their own kind. After all* it was only after quite a few years that the JAGs noticed – as if by inadvertence – that baaad things were going on justice-wise and all that; they are in this mess up to their ears. And if you think the depths of JAG participation have now been plumbed, hold that thought – as Stephen Lendman notes, there are a number of Navy ships that serve as “floating prisons”, at sea and in international waters, in whose dark bellies assorted ‘detainees’, ‘enemy combatants’ and other such flotsam and jetsam have been held and mistreated. Lendman mentions USS Bataan, a ship large enough to have its own military lawyer (and doctor and chaplain). But then, Gitmo had its own military lawyer (and doctors and chaplains) too. And We didn’t hear much from them, did We?

Their plan now will be an extension of their plan that has worked so well in the military justice system: in exchange for protecting the bosses (almost no general or admiral has ever been court-martialled) they themselves are protected from courtmartial (the proportion of JAGs courtmartialled is only a bit higher than that of the flag officers).

And not only do they have a mole in the system from the Right - the execrable Sen. Lindsey Graham (R-S.C.) who is a JAG Reserve general and former military appellate judge - but also from the Left - Joe Biden's kid, whose day job is Attorney General of Delaware where the banks and credit card companies have found a home, is a Reserve JAG, currently facing the rigors of military lawyer life on 'active' duty.

Let Us not be deceived: In this whole 'opening' to the idea of an ICC there is a something-else in sheep's clothing. At this point, just as in so many of the domestic messes (the economy and the consequences of decades of ideological feminism come quickly to mind), there are now numerous Beltway biggies in the Legislative as well as Executive Branches, Democrats as well as Republicans, military officers as well as high officials, who formally qualify for 'war crimes' prosecution (and - hardly improbably - conviction). Yoo, Cheney, Rumsfeld ... they're only the tippy-tip of the huge iceberg of filth that has formed under Our very noses. So, a shrewd and pre-emptive two-fer for the Beltway is to a) agree to participation in the ICC while b) placing upon Our participation the rider that a screening group of 'disinterested' professional worthies will vette every potential prosecution of any American 'citizen' (and that doesn't really mean Joe Six-Pack). And what better bunch for the Beltway to rely on than those bemedalled, sleazy-shrewd, 'loyal' professional ho's of fake-Justice and Empire, the JAGs?

Neat. It's another replay of the JAGs' tried and true Military Justice modus operandi: bray loud and proud that you have an open and honest system, while behind the scenes pulling all the strings and controlling all the outcomes, in the service of your friends and benefactors and bosses.

To the Treaty regarding the International Criminal Court I’d say (as does the editorial): let the President sign it and send it along to the Senate – those PAC-pawed worthies can then show Us how they handle a real hot potato.

To the insidious offer that retired JAGs be the gatekeepers of international justice for war crimes I can suggest no better response than that of the late Brigadier General McAulliffe at Bastogne: “Nuts”.

NOTE

*There are those few JAGs who, now that the pressure is on, have been suffered to vigorously represent their clients at Guantanamo. But they are allowed to do so by the bosses simply to ‘keep up appearances’ and after the heat dies down these hardy, decent and courageous souls will be dealt with in the same spirit as Stalin dealt with returning Red Army ‘heroes’ who had spent too much time near the West and the Allies.

CRIMES AND WAR

Jeremy Brecher and Brendan Smith write about “Will War Crimes Be Outed?” in an article originally in ‘The Nation’ but also on Truthout, and available here.

It will be interesting to see if We can judge Ourselves with as much gimlet-eyed clarity as We did the Nazi functionaries 60-odd years ago. Going out and renting ‘Judgment at Nuremberg” from 1961, drawing near to the flint and glint of a by-then-craggy Spencer Tracy’s back-country judge, and sensing the heat and sharpness of his focus on truth and justice, and then imagining some of Our own Beltway macher and their enablers trying to swing into their vaudeville in the unwavering beam of that steely glare … well, that’s an exercise in a sort of civic prayer, the kind that the lesser-visioned might accompany with popcorn, but the larger-souled with sackcloth-and-ashes. Feel free to try it.

Tracy’s judge is rooted like a rock in concepts of decency and truth and professional responsibility – especially when one wields the power of high justice . Such a ‘character’ is not to be found inside the Beltway these days … anywhere. And to the pleas that in the service of a ‘larger good’ or of the ‘needs of the People and Nation’ certain allowances must – ach! – be made by any ‘responsible’ official, especially one of the ‘elite’ who ‘know’ … he is unmoved. Like an Old Testament prophet, or like an Old Testament ‘God’, his gaze – bearing within it a steady and solid stream of truth – he is unswerving. Perhaps his is a ‘moral equivalent’ to war, a moral equivalent to Sherman’s orders to his subordinate commanders: we are here to march from Atlanta and take Savannah , so do not let yourselves be distracted from the road.

Neither the fuzzy ‘optimism’ of the Sixties hippy nor the everything-is-good-because-nothing-is-bad deconstruction of the Seventies social-revolutionaries would tolerate such ‘rigidity’, such ‘judgmentalism’. Are We the better for that? Nor is this a subtle refutation of such social progress as has been made in recent decades. But such progress – to the extent that it actually is progress – should always have been seen truthfully for what it represented: as both a desirable ‘good’ and a tremendously fraught challenge that would require the most careful and deliberated calibration to avoid creating at least as much regression as progress, if not perhaps more.

At this point The People are comprised of so many who have been raised in such an atmosphere, who have grown to an adulthood built on the bright, shifty sands of ‘life’s a beach’ rather than the hard, straight surfaces of a Road that must be travelled without distraction.

It’s curious that as the military virtues inculcated by the military service of so many Americans in World War Two have faded – such that the citizenry have become less ‘military’ – yet the government has sought to militarize the citizenry. At the higher end of its range, military service inculcates habits of self-organization and self-discipline and teamwork and an abiding alertness to one’s surroundings and an unsleeping questioning as to whether ‘this’ contemplated action will yield the needed results and at what cost; this is distinct from what used to be thought of as the ‘civilian’ approach: less of all that – a more expansive concern for the self’s comforts and amusements, less awareness of the ‘cost’ of everything, measured against a ‘goal’ or an ‘objective’, less trellis-ing of the individual on an overriding purpose.

Yet as those qualities faded from the national characteristics – or withered under the dual assaults of death and deconstruction - the increasingly Shape-less citizenry came to rely on the government, as if it were an exo-skeleton, for purpose and objective and discipline and – oy! – meaning itself.

No government deserves that much dependence. And not Washington or Jefferson or Jackson or Lincoln or Teddy Roosevelt would have expected it or thought it healthy from a civic point of view. The current generations have wound up as ‘other-directed’ as the Fifties’ popular sociologists had feared those generations were becoming. Though few wear ‘gray flannel suits’ anymore, yet many are indeed ‘organization’ folks, unable to stand on their own, detached from their own interior strengths, ignorant (and thus at the mercy) of their weaknesses, penned up in a flatness fenced and policed by forces – social and ‘business’ then, ‘patriotic’ and governmental now – outside of themselves. The new film ‘Revolutionary Road’ doesn’t simply limn the aimless emptiness of the Fifties and its ‘adults’, but touches more deeply into the great abyss of meaninglessness lurking in all human beings, against which the adult must early and ever strive to impose a Shape and bring forth order and fruit from such dull chaos. Nor could the moist though brightly colored clay of a James Dean or Brando’s defiant-biker offer a reliably constructive and life-giving alternative, one that would put a firm foundation under a citizen capable of taking one’s place among The People. And the Republic is thus greatly diminished. As We are now seeing.

What can We expect at this point from a political leadership that has for decades shaped itself in such a way as to profitably deal with an increasingly dependent citizenry? The pols are clay – whether mushy or brittle – because the citizenry who elect them have become, in far too many instances, mushy or brittle.

And like the urban crowds ever milling about in the HBO series “Rome”, We now appear to them and their corporate masters and media enablers as nothing more than a milling mass of sheep, to be placated (millions of anything – even sheep – can cause a lot of trouble if they stampede) while the ‘great ones’, the magnates and the optimes pursue their various plots and plans.

But I can’t let pass a point raised by “law professors Anthony D’Amato and Jordan J. Paust (the latter a Professor at Northwestern School of Law): Obama is required to faithfully execute the laws and if credible accusations of law-breaking are put forth, he cannot choose whether or not to investigate.

True enough.

But Professor Paust is also a former Army JAG and, as well, on the faculty of the “Judge Advocate General’s School”. So I have to point out what I have pointed out several times before, especially in Posts in the latter months of 2006 and the Spring of 2007: in the matter of war crimes and the endless ‘insults’ to the rule of law and the spirit of American law, the military justice system is not the redeemer of the present unholy situation; it is rather the source, fount, and origin of it. Bush did not oppose military law; he simply took it recklessly to a higher level, one dangerously more exposed to the possibility of public view (and, hopefully, review).

I make no judgment as to the integrity of Professor Paust’s personal position. An ‘upside’ to the catastrophe of the past several years is that there are now younger JAGs (Paust himself is only a Captain at this point) who refuse to acquiesce in the prostitution of Western law as it applies to Guantanamo and Abu Ghraib, to torture and ‘enhanced interrogation’ (that phrase borrowed shamelessly from Himmler). Or he may be simply contributing – knowingly or not – to the JAGs’ effort to save their core operation by getting themselves out in front of the exposure of Bushist illegality, hoping that We will unthinkingly make the inference that if the JAGs are ‘against illegality’ then their system of military justice must be ‘good’.

And that inference would not be justified.

The system itself is the problem: ‘company justice’, where the legal system is seen as an arm of the command that brings the charges to begin with, and where all the players are on the same side except the defendant him/herself.

Surely, if Congress were to pass legislation to the effect that the General Motors Corporation is so essential and unique that it should be allowed to have such authority over its employees that it can prosecute the entire criminal code – using judges, prosecutors, investigators, defense counsel, and jury members in the pay of the Corporation, and assuming that almost all of the witnesses would also be employees of the Corporation … if Congress were to do that, We would not, could not, stand for it.

Yet staging such a kabuki is precisely what the military system does.

We are currently seeing the emergence of a debate about the Federal Reserve that bears much relevance to the problem. In 1913 Wilson (who later bitterly acknowledged that he had ‘ruined his country’ by doing it) got Congress to go along with the erection of the Federal Reserve authority. In essence, Congress ‘delegated’ its constitutional control over the money supply, and delegated it to gentlepersons who, for all their specialized knowledge, had a very great deal to personally gain from such control. There was, and always has been, a profound constitutional question as to whether Congress even has the authority to ‘delegate’ its power over the currency and the money supply to some other entity.

A few years later, on the eve of World War 1, the military – unsleeping in its sharp lookout for the aggrandizement o fits authority and its role - approached Congress and sought the authority to prosecute not only the old Articles of War, but rather the entire criminal code, through its courtsmartial. In order to do an end-run around the clear strictures that the Constitution placed on Congressionally-erected courts (so-called Article Three courts, named after that section of the Constitution governing judicial procedure), the generals proposed that Congress ‘delegate’ its authority to the military, although the military’s command authority stemmed from Article Two, the Executive; Congress, thus, would be delegating its power to the Executive - and precisely, its power over criminal process, so carefully structured by the Founders. The Constitution and the Founders most specifically did not want the Executive to be running a criminal court system; the Founders recalled such legal abominations as the Court of Star Chamber, that answered to the Crown and the Sovereign as late as the era of Tudor and Elizabethan England.

But Congress’s enabling of the Federal Reserve authority just a few years before was a ‘delegation’ that had breached the firewall, and the generals were trained to take advantage of any breach of any wall that limited or confined their authority and range of operation.

There remains the profound Constitutional question as to whether Congress even has the power to make that delegation. And thus whether the military has or has ever had any right to conduct ‘criminal’ justice. Indeed, it was not until the Gingrich Ascendancy in 1994 that the military felt ‘safe’ enough to suddenly label its assorted ‘courts’ and investigative services as ‘criminal’: thus the Court of Criminal Appeals and the Naval Criminal Investigative Services (irony, alas, is lost on the Pentagon mind), among others. These pretensions were therefore formalized only recently, and effected ‘overnight’ (think of how much it cost to change all the badges, stationery, door and building signs, and templates for court documents).

This question joins the older and rather clear problem in the Constitution: in the Fifth Amendment the Founders clearly placed a comma in such a way as to forbid the military to conduct its own trials of its soldiers except in time of war.* That’s how nervous the Founders were not only about a standing army, but about an army dispensing’ justice’ through its command structure.

The current codification of the military justice system – the Uniform Code of Military Justice – was deployed in 1950, only after the generals had stiffed Harry Truman for five years; Truman had been deluged by complaints about military justice from returning vets in 1945 and even General Jimmy Doolittle’s blue-ribbon commission recommended major changes to reduce the very ‘command influence’ that was the precise reason the generals wanted to be a so-called Executive court rather than an Article Three court (bound by all the Constitutional strictures).

How to keep their ‘criminal’ power without accepting the Constitutional strictures? The generals and the JAGs borrowed from Stalin’s playbook of the mid-1930s: if you own all the players, you can make all the ‘guarantees’ and pious promises you want, even in writing, because when push came to shove your players would perform exactly as you wanted them to. The players in this case being the judges, prosecutors, investigators, defense counsel, and any witness in uniform who wanted to keep his or her job.

Truman was displeased, and said so publicly. But it was the Cold War and the Commies were everywhere. He couldn't afford to take on the Pentagon and a hive of career-hungry lawyers.

And here We are.

As the citizenry becomes less able to Shape their own individual lives, as the government intends to exercise even more power over them for ‘national security’ or for their own good, a militarized justice system will serve the purposes of control far more efficiently than the ‘old’ (perhaps ‘quaint’?) Constitutional system of adversarial justice.

Things are taking an ominous turn indeed.

Now Bush has gone and thrown the whole racket into the bright light of day, and the JAGs have to do something to save their core racket, as well as avoid getting themselves into … ummm … a ‘Nuremberg situation’ where they will have to fall back on the ‘only following orders’ defense.

Before they had sunk to the level where they made the Emperor’s horse a god, the Roman Senate exercised a crucial wariness of uniforms and swords operating anywhere except far away on the fields of actual battle. Caesar’s grafting of a military and imperial template upon the old Republic spelled its doom. And Rome did not end well, nor did its Citizens.

This was a lesson not lost on the Founders.

Our dependence on things military – on government – almost to the exclusion of any personal independence of spirit and vision, of personal and civic character, will continue to corrode even as it corrupts The People.

This is Our rendezvous with destiny. This is the challenge of Our time.

____________________________________________________
* The actual text is: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger".

Note the effect of the comma after "Militia"; it extends the following phrase ("when in actual service ...") to cover both of the preceding clauses ("or in the Militia" and "except in cases ...").

DEGRADED

I came across an article from more than half-a-century ago: “Conditions of Successful Degradation Ceremonies”. It was written by one Harold Garfinkel, and published in a scholarly professional journal. It’s available, among other places, at http://www.jstor.org/stable/2773484.
Judging from the date, I’d say that watching the McCarthy hearings and all of the dark looniness surrounding it had something to do with inspiring the author as to the need for the article. And further back, he must have watched the increasing pattern of demeaning Jewish people during the Third Reich of only twenty years before. And perhaps the Leninist and Stalinist “denunciations” and “classifications” that took place without let-up from 1918 right up through the show trials of 1938.

Yet it’s a piece that doesn’t discuss any then-current or then-recent events. It’s careful, dry, clear, precise, and – well – ‘scholarly’, but in a crisp social science way (social science, at least, the way it was done back then).

But still you read it and you can’t help thinking about the McCarthy trials and perhaps Germany in the 1930s. And no doubt folks who read it in 1956 did just that. It held many rewards for folks trying to get a grasp on what those events meant for Americans and for human beings generally, for Us and for Our future.

I am reading it now. The McCarthy hearings are – thankfully – back in the past, as is the Third Reich and – after much tribulation – the blood-feverish visions of Communism. Forgotten … but not gone, I think. Because when you read the article, you get the eerie and disturbing sense that it’s very contemporary. You get the sense that it’s all very familiar. Too familiar to just be about something so far in the past. You get the eerie sense that Garfinkel is describing something in the present world, the world of contemporary America, Our world.

And that can only mean that whatever demonry he describes from his own world has now come into Our world. And hasn’t much changed.

The ‘degradation’ is aimed at “transforming an individual’s total identity into an identity lower in the group’s scheme of social types”; thus it is a “status degradation”. The “denouncer” has the goal of getting the onlookers “to appreciate the perpetrator and the blameworthy event as instances of an extraordinary uniformity”. To accomplish this the denouncer “must name the perpetrator an ‘outsider’”.

I could think of the Manichean denunciation and classification of those who are “goats” in the world, in their very essence beyond the rights of human beings and liable to human degradation and violence utterly justified as being God’s will – such is the fond, fierce practice of fundamentalisms everywhere.

We see it, from a distance, deployed against other people and peoples even now.
But I want to focus on how it is done much closer to home, and not spontaneously, but erected into law and incised into the popular mood among Us to such a degree that it comes to assume an aura of inevitability, as if it had been with Us all along and enjoys the status of a ‘good’ and ‘logical’ thing to do.

Garfinkel observes that whenever such a new ‘identity’ is to be imposed on a person or a group, “the identity must be ‘total’, meaning that the ‘identity’ “must refer to persons as ‘motivational’ types rather than as ‘behavioral’ types”. In other words, it’s not what they do, it’s what their ‘motivations’ are; it presumes that there is a ‘motivation’ common to the entire target group, and that this ‘motivation’ is somehow essential to the persons, predictably expectable from them. This dynamic was used to describe ‘Kulaks’ by the early Soviets, to describe ‘Jews’ by the Nazis, to describe ‘pinkos’ by McCarthy.

It is contrary to the spirit and practice of Western law, that with a due humility does not seek to divine motives or predispositions, but rather limits itself to judging acts. An act is all that is extended into actual events, such that an observer other than the act-or can see it, or discover irrefutable traces of it. This is all a human court can do. It’s all that humans, not possessed of supernatural powers of insight and knowledge, can with any reasonable certainty discover by the flickering lamp of human reason.

In the history of this country, the Salem witch trials were not a precedent but a throw-back, a revenant from a prior age, where certain believers felt that they could discern with certainty the causes and sources of certain suspect acts; causes that included supernatural beings, active in this world. The ‘mind’ of a suspected witch or warlock, one who cooperated with dark powers and dark beings, could be clearly discerned, if the right methods were used and the right assumptions were made by the investigators. And in the end, the suspect could be declared for what she or he ‘really’ was, a cooperator with the demonic and the infernal, and thus the accused could be ‘degraded’ in status, from member of the community to ‘evil other’; death would often be the result, as it was for many in Salem.

Western justice, freeing itself from theological entanglements with the immaterial and the unseen and the un-provable, limited itself. And was justly proud of the fact.
But in doing so it set itself a difficult task, although one that proves vital to a free society. Because there is a natural and not unhealthy capacity for “moral indignation” in all human societies: it is this capacity that enables a society to inculcate in its members what is acceptable and not-acceptable to it on a fundamental level. Deployed wisely, this capacity can foster a sense of identity and unity among the members of a society. Deployed otherwise, it can create unjustifiable divisions, excessive wounds – physical or emotional, and even inaccurate judgments that eventually undermine the commonality itself. In the Western system of justice, the court – through its careful investigation and deliberation - is there to not only to protect the community from malefactors, but to protect the community from itself. Because in the long run, the community can harm itself far more grievously than any individual or individuals among it.

“The paradigm of moral indignation is public denunciation. We publicly deliver the curse: ‘I call upon all men to bear witness that he is not what he appears to be but is otherwise and in essence of a lower species.’” It’s not simply that the person is other than he appears; saints are not so often what they appear to be to their contemporaries, and angels famously disguise themselves; you could make a case that Jesus did it. But it’s that this ‘appearance’ is with absolute certainty indicative of ‘inferior’ status. In a West influenced by Christendom, no human being has the authority to reduce the status accorded to a human being by the Creator.

Not acknowledging a God, the Soviets arrogated His powers to the State. Acknowledging a God but presuming utterly that He was on their side, the Nazis also arrogated unto themselves that power. Dispensing with God with a refreshing (and almost surprising) candor, the Italian Fascist, Mussolini, simply and flatly declared: ‘Nothing outside the State, nothing above the State, nothing against the State.” The State which, not coincidentally, he and his Party ran. But all of these instances were departures from the ideals of the West; and unless We wish to condemn every entity that fails to live up fully to its ideals, then We cannot condemn the West for what these vigorous monstrosities concocted in their rebellion against it.

“Moral indignation serves to effect the ritual destruction of the person[s] denounced.” Now that is a powerful concept: ‘destruction’. Human beings in their more deliberative moments have always considered themselves well-advised to employ it sparingly; it has proven itself to have a nasty boomerang capability, especially if wrongly inflicted.

Courts in the West have thus had to contend with this delicate but vital balancing act: to inflict some ‘partial destruction’ – almost never the total destruction of death – sufficient to the crime but proportional to it as well. The job had previously been left to the wronged himself, or if he was incapacitated, to the relatives of the wronged; among advanced tribal peoples this sometimes resulted in elaborate schedules of payment – ‘wergild’ is one instance – which the wrong-doer had to pay to the wronged or his family members. A more primitive alternative was simply to let the wronged, or his relatives, go after the (hopefully correctly identified) wrong-doer to extract or inflict whatever they could or whatever they felt was due. When the State assumed a monopoly on violence, then it assumed responsibility for correctly identifying the wrong-doer and assigning a sufficient punishment. The wronged had a way of going a bit overboard with a distressing frequency; a society could be torn apart in short order.

Transforming a person in his very essence is accomplished by “substituting another socially validated motivational scheme for that previously used to name and order the performances of the denounced.” By the denouncer somehow inducing the community to look upon the person through the lenses of the substitute system, the denounced person becomes [in their eyes] a different person”. Where yesterday in the village a man was simply a fellow-peasant with a few more cows and a larger hut, today he is a “Kulak”, and the only fate for the parasitical Kulak is to be put up against the nearest wall. And through the working of the new ‘lenses’, not many folks feel bad. Although, as the Soviets eventually discovered to their dismay, a lot of folks started wondering if tomorrow they themselves might not be declared a Kulak, especially if the definition of Kulak kept changing to expand the class of potential targets. A society with too many folks thus preoccupied and distracted is not going to get a lot of stuff done. And shooting even more folks turns out not to work so well in the long run.

In order for the whole thing to work, a couple of things must be made to happen.

First, “both event and perpetrator must be removed from the realm of their everyday character and be made to stand as ‘out of the ordinary’”. The denounced person or perpetrator must be seen to be ‘extraordinary’, and not in a good way. After all, if whatever he had done was ‘ordinary’, then there would be no reason for ‘destruction’ and the usual justicial workings of the community would apply. And if he was ordinary, then folks would not feel right about inflicting ‘destruction’; and their guilt, if overridden long enough to approve the ‘destruction’, might well boomerang, sooner or later, onto the denouncer. (This is one big reason why when this type of thing gets started, it’s hard to stop: the ‘denouncers’ and their collaborators – official as well as unofficial – don’t want the lenses to come off the people and the people’s guilt, now transmuted into anger, to be inflicted upon them.)

And this is where ‘emergency’ comes in. The ‘extraordinary’ nature of the act or the denounced person justifies the change in ‘lenses’ by which the people view the denounced person. Released from the cage of ‘ordinary process’, emotions can be loosed among the people which can overwhelm reason. Dictators and revolutionaries don’t cotton to ‘emergencies’ out of boredom or lack of imagination; they grasp the usefulness of ‘emergency’s’ power. And so often, the people don’t realize the painful truth of just how primitive or emotional they can be; the fragility of ‘civilization’ is not something most folks like to think about, in relation to themselves. As the Greeks famously assumed, ‘barbarians’ – by definition – lived somewhere else.

A sturdy court system, like a system of levees, will be able to handle such a tidal surge. But if it is driven by too big and well-orchestrated a storm, then – like the courts in Germany by 1934 – then they too will bend, and become deformed. And then, not wishing to admit the fact, the courts themselves become part of the inertia preventing recovery from the flood of emotions and what was done under their influence.

Second, both the act and the denounced perpetrator must be seen to have a preference not simply for the act, but for the type of act. Thus, this type of person will inevitably commit this type of act because it is in his essence to do so. Thus a Kulak must be killed not simply for what he purportedly has done in the past (be a parasite on the people) but because he will always try to do it in the future; and thus all Kulaks must be identified and destroyed, because there is no rehabilitating them – they are what they are and can never change.

And “event and perpetrator must be treated as a uniformity throughout the work of denunciation”. The Kulak and the parasitical theft and the essence of being a parasitical thief – it’s all of a piece, and there’s no breaking that chain. You will never be able to separate the essence of the man from the act, not under any circumstances.

And the people “must appreciate the characteristics of the typed person and event by referring to a dialectical counterpart”. Thus a Kulak should always be accompanied, even if only in the viewer’s mind, by a ‘good communist’ whose shining example throws the Kulak’s dark evil into even more vivid relief, the shadow appearing darker when contrasted with light. The curious American variant – more passive – is the ‘victim’, who is, in the lenses, innocent and deeply damaged.

Further, the denouncer must get himself to be seen by the people as not-personally interested in the outcome of the denunciation, as merely a heroic upholder of the ‘common values’, who can speak in the name of those values to the people, and who can speak in the name of the people to effect the destruction of the denounced person. Again, curiously, the American variant requires that the ‘victim’ be very ‘interested’, but under the influence of a certain feminist valorization of ‘feeling’, it is this ‘feeling’ and the sympathy that any ‘correct’ onlooker will deploy that actually launches the designated ‘victim’ over the hurdle of having a very significant stake in the outcome of the process.

It’s not hard to see how terribly fraught with emotion this type of dynamic is. Especially in the setting of a court, this can exercise a baleful influence. In a hundred or a thousand courts, the consequences to a society can be profound.

And since “not only must the denouncer fix his distance from the person being denounced, but the witnesses must be made to experience their distance from him also”, then this depersonalization introduces a toxic element not only into the court and its personnel (the judges especially), but among the people in whose name – theoretically – the denunciation is being carried out.

And finally, “the denounced person must be ritually separated from a place in the legitimate order, i.e. he must be defined as standing at a place opposed to it. He must be placed ‘outside’, he must be made ‘strange’.” The people must see – through the lenses – that this irretrievable perpetrator is also opposed to the order and well-being of their society, is an active and deliberate and purposeful enemy of it, and is no ‘member’ of it, but is rather some ‘stranger’. At times, the Soviets and the more tactful Chinese, augmented the ‘otherness’ of an enemy-of-the-people with a psychiatric label to reinforce the ‘strangeness’ (in their ‘science’, opposing or questioning the communist system was of itself a clear indication of insanity).

But it is of paramount importance that the people do not see the denounced as one of themselves. And this is also dangerously narcotic to the people, since they are lulled into the sense that what is happening to the denounced – since it only happens to ‘others’ and to ‘strangers’ whose attitude has been deliberately chosen and embraced – will never happen to them; they are ‘good’ communists, Nazis, Germans, fill-in-the-blank. Martin Niemoller, the former German naval officer turned pastor and preacher, noted that he took no notice when ‘they’ came for this or that group and did not speak up for the accused, until ‘they’ came for him and there was nobody left to speak up. Most people, when ‘they’ come for them, do not even achieve the consolation – stern as it is – of that much self-insight.

(Come to think of it – most Americans nowadays aren’t really going to grasp the concept of a ‘stern consolation’, are they?)

Thus Garfinkel. He was writing about what he detected in his times. I sense that it is among Us now. And that it is a product of two fundamentalisms: the fundamentalisms of a politically-ascendant if not mainstream Protestantism that reinforces its own identity by identifying and hunting ‘strangeness and otherness’ and of a feminist (of the Second Wave) hostility to ‘men’ and to ‘reason’ that seeks to gain leverage over ‘male domination’ by continually tapping into that inexhaustible font of powerful emotional grievance, sex. And the whole brew carefully blended by a government police power that has found that what authority it cannot expand on its own behalf, it can expand by cloaking itself behind the cover of ‘the victim’, on behalf of whose pain and outrage all manner of constitutional encroachment can be effected. And in the 1990s it all came together.

The fact that so much of what Garfinkel observed among Red-baiters (and tellingly among the genuine Reds themselves) and – I think – among the Nazis who copied much of the Soviet playbook in these matters is traceable to the tremendous borrowing that America made from the Nazis and the Soviets after the war. From the Nazis we not only got military tactics like ‘blitzkrieg’ and rockets and jets and ‘preventive’ war (and eventually the shape of their helmets), but also the masterfully developed propaganda trade-craft of the darkly brilliant Goebbels (who himself got some of his best ideas from the 1920s American pathfinder of ‘shaping’ (manipulating) public opinion, Edward Bernays). From the Soviets, especially through certain feminist theorists of the second-wave who borrowed heavily from Marx’s analysis and Lenin’s and Stalin’s praxis, and from advanced level ‘advocacy’ specialists, came orchestrated campaigns against targeted groups and imposition upon the public and the court system of ‘sex offenses’, packaged so as to be irresistible to an increasingly shallow and sensationalist mass media, and show trials, and dubious ‘science’ that is not accepted by any of the most reputable practitioners and institutions.

Why keep bringing this up? Because all of this is still operative through laws that even now continue to become more and more oppressive, and are passed without any serious justification or grounding in fact or science, and systems of registration that continually demonize large swaths of citizens.

As an example, the Supreme Court has stated that the whole system would raise constitutional issues if it weren’t for the fact that it is ‘rehabilitative’ and that it is not ‘punitive’. Yet no practitioners or researchers can point to a rehabilitation program that works, nor even a diagnostic system or etiological explanation that is viable. And Hitler – seeking the German people’s donations to his assorted schemes for assisting the needy – refused to legislatively mandate such donations; he simply published in schools and places of employment the names of those who did not contribute: harmless public notification?

And what does it do to the sense of community and the community’s sense of justice when such derangements are embedded in the public mind – and conscience? What does it do eventually to the legitimacy of Law itself?

We are operating Our constitutional system, having introduced great chunks of communist, fascist, and authoritarian praxis. Do We assume that since these chunks have been ‘baptized’ by being put into the service of ‘American’ society that somehow they will thereby automatically lose their noxiousness and toxicity?

We allowed Our economy to operate in the hands of those so ‘interested’ in it that they enriched themselves by all manner of schemes, and where has that led Us?

We allowed Our foreign policy to fall into the hands of unripes who deluded themselves into thinking that what failed for the aggressive governments of the early and mid-20th century would work for Us, and where has that led Us?

This can’t go on forever. It probably can’t go on much longer. If We don’t stop all of this, it will stop Us. That will be stern, but it won’t be a consolation. History doesn’t like being ignored on such a scale; neither does Reason.

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.