No Comment — December 11, 2007, 8:07 am

Undermining Military Justice

It’s a cliché to say that “military justice is to justice as military music is to music.” It’s also far from fair to the American military. Over the last fifty years, the American military justice model evolved into something that—while always short of perfection, as all human works—nevertheless accurately reflects the basic values of a democratic society. In fact, the American court-martial system has long been something that Americans could be proud of. And more than anything this is thanks to the diligent work and professionalism of the uniformed lawyers who make that system work, the JAG corps.

Within two years of its arrival in Washington, the Bush Administration began to take a crow bar to the American military justice system. They wanted a new process in Guantánamo, and they had no position for justice in it. And they wanted the military lawyers to be their frontmen. As a senior JAG officer explained to me in West Point this fall: “They never asked us for our advice on how to do this. They instructed us what to do. And we did the best we could to give their designs at least some modicum of justice. But nobody is happy with the product.”

In fact over the last years we have seen a steady parade of JAG officers on the public stage protesting what has been done—a demolition derby of traditional values and procedures. “It’s destroying our reputation. Why should we be quiet about this? We are the guardians of an important legacy. Don’t we have a duty to that legacy?” Now I know a good many of these men and women, and they are not a bunch of wild-eyed Bill Kuenstlers in uniform. They are mostly conservative Republicans. And what propels them is that very conservatism–respect for traditional values.

Those who have spoken have been the TJAGs, the senior most generals and admirals in each service line, but also defense counsel, judges, and now the prosecutors. Congress has enacted legislation which will shortly promote the senior echelon of JAG officers, on an initiative from Senators McCain and Graham. This is a necessary change, because in the Bush Administration, uniformed lawyers have not gotten the respect and attention they deserve, and the country has faced a series of embarrassing scandals as a result.

Earlier this year we heard from a highly regarded prosecutor, Colonel Couch, who described how the mistreatment of detainees undermined his ability to prosecute. Couch subsequently was ordered not to appear before Congress and testify (a flagrantly illegal order, by the way, since it directly challenged Congress’s ability to select and arrange for witnesses to inform it on issues it was investigating, but par for the course for this Administration). Couch, like any ethically rigorous prosecutor, knew that this duty was not to rack up another conviction (the attitude now routinely displayed by the political-hack prosecutors fielded by the Justice Department across the country), but rather to do justice.

And now we hear from Colonel Couch’s boss, the head prosecutor at Guantánamo, Colonel Morris Davis. He has given a couple of interviews and now he has authored a vitally important editorial in the Los Angeles Times explaining why he quit. I have been critical of Colonel Davis in the past, but I never doubted he was a person of integrity, and his actions in the last few weeks have demonstrated not just integrity, but real courage.

There’s one key piece of the story that needs some focus. Davis quit when he was placed directly under the command of the General Counsel of the Department of Defense, Jim Haynes. Donald Rumsfeld’s lawyer has been able to hold his job in the Gates Pentagon, remarkably, though perhaps understandably since it’s hard to imagine where he would find other employment. He is a principal author of the system of official cruelty and torture; indeed, he presented and secured Rumsfeld’s signature on a key document (likely to figure in criminal prosecutions in the future) authorizing waterboarding and other extreme techniques—and that’s just what has crept into the public record. There is doubtless much more still in the files, or, more likely, at the bottom of incinerators. Like a “loyal Bushie” lawyer, Haynes was directing a series of convictions to occur to be lined up with the 2008 election cycle. And rather than accept the complete dishonor that all of this meant, Davis resigned from his appointment.
Here are Davis’s key conclusions about the system he helped to run in Guantánamo:

I was the chief prosecutor for the military commissions at Guantanamo Bay, Cuba, until Oct. 4, the day I concluded that full, fair and open trials were not possible under the current system. I resigned on that day because I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly. In my view — and I think most lawyers would agree — it is absolutely critical to the legitimacy of the military commissions that they be conducted in an atmosphere of honesty and impartiality. Yet the political appointee known as the “convening authority” — a title with no counterpart in civilian courts — was not living up to that obligation.

In a nutshell, the convening authority is supposed to be objective — not predisposed for the prosecution or defense — and gets to make important decisions at various stages in the process. The convening authority decides which charges filed by the prosecution go to trial and which are dismissed, chooses who serves on the jury, decides whether to approve requests for experts and reassesses findings of guilt and sentences, among other things.

Colonel Davis charts the progressive deterioration and politicization of the Military Commissions process. He noted that Major General Altenburg was removed as convening authority and replaced with a friend and confidante of Dick Cheney’s, Susan J. Crawford. Under Crawford, he notes, the politicization of the process accelerated dramatically. The final straw was the appointment of Haynes, a man rejected for a federal judgeship because of his critical role in the introduction of torture and abuse into the detention systems, as his command authority. Colonel Davis makes clear that this was a point of honor to him. And he means “honor” the way George Washington used the term—whether we demonstrate fidelity in our conduct to the values we articulate with our mouths. He writes:

Sens. John McCain and Lindsey Graham have said that how we treat the enemy says more about us than it does about him. If we want these military commissions to say anything good about us, it’s time to take the politics out of military commissions, give the military control over the process and make the proceedings open and transparent.

We know that this White House provides not moral leadership, but moral bankruptcy and rot. We need to keep our eyes focused on the Supreme Court—which holds the future of the kangaroo court system at Guantánamo in its hands in the Boumediene case now under review—and the Congress, which will again be allowed to speak to torture and official cruelty in a vote on the intelligence bill in the coming week. As Colonel Davis makes clear, what’s at stake couldn’t be clearer: it’s a question of honor for the military, and the country.

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