Tuesday, July 07, 2009

Little Man On Campus




"Good morning, everybody," declared US Senator Carl Levin bringing to order the Senate Armed Services Committee Hearing on Military Commission and the trial of Detainees for Violations of the Law of War. "In its 2006 decision in the Hamdan case, the Supreme Court held that Common Article 3 of the Geneva Convetions prohibts the trial of detainees for violations of the law of war unless the trial is conducted 'by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.' The Court concluded that 'the regular military courts in our system are the courts-martial established by congressional statutes' but that a military commission can be regularly constituted by the standards of our military justice system 'if some practical need explains deviations from court-martial practice'.'' His opening remarks set up the hearing so we'll also note this section.

Senator Carl Levin: Of great importance, the provision in our bill would reverse the existing presumption in the Military Commissions Act of 2006 that rules and procedures applicable to trials by courts martial would not apply. Our new language says, by contrast, that: "Except as otherwise provided, the procedures and rules of evidence applicable in trials by general courts-martial of the United States shall apply in trials by military commission under this chapter." The exceptions to this rule are, as suggested by the Supreme Court, carefully tailored to the unique circumstances of the conduct of military and intelligence operations during hostilities. Three years ago, when this Committee considered similar legislation on military commissions, I urged that we apply two tests. First, will we be able to live with the procedures that we establish if the tables are turned and our own troops are subject to similar procedures? Second, is the bill consistent with our American system of justice and will it stand up to scrutiny on judicial review? I believe that those remain the right questions to consider and that language we have included in the National Defense Authorization Act for Fiscal Year 2010 meets both tests. Over the last three years, we have seen the legal advisor to the Convening Authority for military commissions forced to step aside after a military judge found that he had compromised his objectivity by aligning himself with the prosecution. We have had prosecutors resign after making allegations of improper command influence and serious deficiencies in the military commission process. We have had the Chief Defense Counsel raise serious concerns about the adequacy of resources made available to defendants in military commissions cases, writing that: "Regardless of its other procedures, no trial system will be fair unless the serious deficiencies in the current system's approach to defense resources are rectified." So even if we are able to enact new legislation that successfully addresses the shortcomings in existing law, we will have a long way to go to restore public confidence in military commissions and the justice that they produce. However, we will not be able to restore confidence in military commissions at all unless we first substitute new procedures and language to address the problems with the existing statute.

The hearing was composed of two panels. The first panel was composed of the Dept of Defense's Jeh C. Johnson, Dept of Justice's David S. Kris and JAG's Vice Adm Bruce E. MacDonald. The second panel was composed of Retired Rear Admiral John Hutson, Retired Maj Gen John Altenburg Jr. and the American University's Daniel Marcus.

Senator Carl Levin: Let me ask you first, Mr. Johnson, I quoted from the Hamdan case in my opening remarks, saying that the Court in Hamdan said: "The regular military courts in our system are the courts-martial established by congressional statutes." But they also said that a military commission can be regularly constituted if there's a practical need that explains the ndeviations from court-martial practice. We have attempted in our language to do exactly that. And my question first of you is, in your view, does our bill conform to the Hamdan standards?

Jeh C. Johnson: Senator, as you, as you noted, Hamdan uh-uh requires -- and of course Hamdan was at a time that the Military Commissions Act of 2006 did not exist, as I recall. The holding of Hamdan was that military commissions -- and I'm not going to get this exactly right -- but that military commission should depart from UCMJ courts only in situations of evident practical need. The proposed legislation, uh, in our view definitely brings us closer to the UCMJ model and the circumstances under which the military commissions, uhm, contemplated by this bill and UCMJ courts differ are, in our judgment, circumstances that are necessary, uhm, given -- given the needs here. Uh, for example, uh, there is no Miranda requirement imposed by-by this-by this legislation. Article 31 UCMJ is specifically excluded from application here. Article 31 is what uh calls for Miranda warnings in uh UCMJ circumstances. The legislation also takes what I believe is a very appropriate and practical approach to-to hearsay. As you noted in your opening remarks, Mr. Chariman, the-the-the burden is no longer on the opponent to demonstrate uh-uh that hearsay should be excluded. There is a notice requirement in the proposed legislation and if the proponent of the hearsay can demonstrate reliability and materiality and that the declarant is not available as a practical matter given the unqiue circumstances of military operations and intelligence operations, the hearsy could be admitted.

And people make fun of the way Sarah Palin speaks? The Dept of Defense sends that stammering uh-uh dofus into a hearing? He's the Dept's General Counsel?

First off, Article 31 is not the military's Miranda. UCMJ's Article 31 predates Miranda by 16 years. Don't confuse the two. Article 32 is not a copy of Miranda. Miranda can be seen as a civilian copy of Article 32. What an idiot. And, no, he has no knowledge of the law. Admitting hearsay goes against everything the US justice system stands for and that includes the US military justice system. The Senate should be ashamed of himself for authoring legislation that shreds the US justice system. Let's not let them off (and I don't) but let's be clear that Johnson's a stammering fool who came off like a drunk barely able to keep his head up at the bar (you really needed to see the way Johnson's head dipped and swung to this side and to that side). David Kris was just as much of an ass as Levin's being but he could speak. What he had to say was frightening. Terrorism, Kris said speaking for the Dept of Justice, should be prosecuted in military courts, not civilian ones and proscuted, pay attention to this, by the Defense Department. Slippery slope is apparently a concept foreign to the idiots Barack's appointed. Senator John McCain, the Ranking Member of the Committee, wanted to know if there was a difference in the proceedings based on whether the trials were held in the US or at Guantanamo? Johnson fretted that "due process" would apply if held in the US and "that the courts have not determined applies -- applies now" at Guantanamo. Johnson had a real problem being concise. Not because he was adding detail but because he was restating the same thing over and over. He did that with Levin in Levin's first round of questioning (leading the Chair to note that there was only six minutes in the round) and he tried that with McCain who cut him off.

Senator John McCain: So what you're saying is that you believe that there could be some differneces in procedure if the trials were held in Guantanamo or the United States of America?

Jeh Johnson: I'm not sure I would be prepared to say significant difference, Senator.

Senator John McCain: It would be important for this committee to know what your view is? It might have something to do with the way that we shape legislation. If they're going to have all kinds of additional rights if they're tried in the United States of America as opposed to Guantanamo, I think that the committee and the American people should know that.

Jeh Johnson: One of the things that I mentioned in my prepared statement, Senator, is that when it comes to the admissability of statements, the administration believes that a volunatriness standard should apply on account of the reality of military operations and we think that that is something that uh due process may require particularly if military commissions come to the United States, that the courts may impose a voluntariness standard.

Senator John McCain: Well I hope that you and Mr. Kris will provide for the record what you think the difference is and the process would be as to the location of uh those trials. I think it's very important. Certainly is to me.

Vice Adm Bruce E. MacDonald made clear to Senator Lindsey Graham that the US has more restrictive use on hearsay than, for example, an international tribunal in Rawanda. Boo-hoo. What Constitution did MacDonald swear to uphold and is not coherent enough to grasp what oath he took? And someone tell the idiot to comb his hair. That fallen lock wouldn't play on a guy half his age and for a man showing up before Congress in military dress it was flat out embarrassing. (His hair was comparable to Paul Wolfowitz for any needing a visual. Only worse.) Senator Mark Udall praised Lindsey Graham and had nothing to add. Disappointing. If any Senator did a half-way decent job and seemed to have an understanding of the law it was Senator Jack Reed who did speak up for at least some civilian courts, at least some of the trials needing to take place in civilian courts and he also noted that a number of criminals are being glorified by having their actions, their crimes, inflated into something more than that. It was a very sad hearing and the first panel lasted about one hour and seventeen minutes. The second panel moved more quickly. Former Judge Advocate General of the Navy and Retired Rear Admiral John Hutson made it very clear that he was opposed to the notion of allowing the Defense Dept to begin conducting trials. He spoke of the US system of justice and it would be wonderful if the senators present had either stood up and applauded or slapped their heads in I-didn't-not-know-that gestures. Instead, his words appeared to sail over their clueless heads. We're going to note his remarks at length:

Even greater than democracy itself, the greatest export of all from the United States is justice. Daniel Webster once said, "Justice, Sir, is the greatest interest of man on earth. It's the ligament which holds civilized beings and civilized nations together." But justice is fragile and easily disparaged. It must be nurtured and handled with great care. I was an early and ardent supporter of military commissions. Initially, I was drawn to their historical precedents and, more importantly, I was confident that the United States Armed Forces could and would conduct fair trails even of reprehensible defendants. My own experience gained during 28 years in the Navy and our long history of providing due process while trying our own military personnel in courts-marital gave me this confidence. Unfortunately, as it turned out, the commissions that were created did not live up to the traditions of the Uniform Code of Military Justice. Predictably, they became a significant distraction for the military. I hasten to add that this was in spite of the stalwart, honorable effort of many, many military personnel themselves. Indeed, that is one of the great tragedies of this saga, and largely makes one of the points that I wish to underline. The primary role of the military is to fight and win our nation's wars or, stated more precisely, to provide the time and space necessary for real solutions -- economic, cultural, social, religious -- to take place. Prosecution of miscreants is an occasionally necessary sidebar to that mission but shouldn't distract from it. We have the UCMJ and the military court-martial system to expedite the legitimate role of the military, not interfere with it. If a sailor on a ship is alleged to have committeed a crime, we must expeditiously and fairly resolve that problem. Otherwise it can fester and interfere with unit cohesion and impede an effective fighting force. The UCMJ and the Manual for Courts Martial serve that purpose alone. They solves problems for the armed forces; not create them. Our recent history with military commissions has been the opposite. I've come to realize that even a perfect commission regime would be a distraction for the military. It's simply not part of its mission. I am very concerned when the military is called upon to perform functions outside of its core mission even when I'm confident that it can do it well. Preserving and ensuring justice in the United States is the primary mission of the Department of Justice, not the Department of Defense. If there will be criticism of our prosecution of alleged terrorists -- and there will be -- the Department of Justice and the US Federal Court system are equipped to deal with that criticism. Indeed, it is part of their responsibility to face it, address it and resolve it.

Monday Kat reviewed Regina Spektor's latest album. I should have noted that this morning but was in rush to get to the hearing (see, it's connected) and (still connected), Kat will share her thoughts on the hearing tonight so be sure to visit her site.

Turning to peace and justice news, infamous War Criminal and scourge of the globe Robert McNamara is dead. In an online discussion at the Washington Post (conducted by Robert G. Kaiser), Promise and Power author Deborah Shapley provided this context:

Washington, D.C.: Hi Bob -- I wrote a biography of McNamara, "Promise and Power," published in 1993. For the record, he told me he did not quit over the grim outlook in Vietnam because he wasn't that sure he was right, and because holding on could force Hanoi's hand politically, in his view. Therefore, the deaths of additional Americans at that time (1965 ff) were not in vain. My personal opinion is that his 1995 book "In Retrospect" gave the impression he thought the war was 'totally wrong' at the time -- which is not what his record shows -- at all! He went on telling the president they could bring off something-or-other, albeit in more pessimistic terms. Some people want to seem on the right side of history even when they were on what 'in retrospect' was the wrong side of history. Too bad for the servicemen that he misrepresented (or seemed to misrepresent) his own record.

In this decade, the War Criminal recast himself as a bra-less starlet followed around by professional gadfly Errol Morris for the mockumentary Fog Of War (aka The Bore Never Shuts Up). As with any Morris revisionary opus, the point of the mocumentary was that no one was really guilty. Alexander Cockburn (CounterPunch) observes:

He faded comfortably away. The last time we saw him vividly was in 2004 as the star of Morris's wildly over-praised, documentary The Fog of War, talking comfortably about the millions of people he's helped to kill.
Time and again, McNamara got away with it in that film, cowering in the shadow of baroque monsters like LeMay or LBJ, choking up about his choice of Kennedy's gravesite in Arlington, sniffling at the memory of Johnson giving him the Medal of Freedom, spouting nonsense about how Kennedy would have pulled out of Vietnam, muffling himself in the ever- useful camouflage of the "fog of war."

Danny Schechter (News Dissector) explains, "McNamara returned to his Waterloo (Hanoi) some years back for a conference on the "lessons of the war" with General Giap, the winner, and several American Generals, the losers. He was challenged by the feisty Vietnamese American documentary director, Tiana [Thi Thanh Nga], who made 'From Hollywood to Hanoi' and other films for all the deaths he caused. There is precious footage of him freaking out and arrogantly lecturing her. The Vietnamese government was too diplomatic to express its rage." On Democracy Now! today, Marilyn Young, Howard Zinn and Johnny Apologist Schell appeared to discuss War Hawk McNamara. Historian Marilyn Young (author of many books and recently co-editor of Iraq and the Lessons of Vietnam) is worth noting. She explained of McNamara:

One of the legacies is that there is none, in a sense. The first clip that you ran, you could have run it now. About Iraq, several years ago, about Afghanistan today. It's as if it doesn't go anywhere. There is knowledge, and then it's erased in between McNamara should be kind of a morality tale. During his tenure as Secretary of Defense, he initially -- he was responsible really -- for the initial escalation. In 1964, he and Bundy gave -- '65, I'm sorry -- gave Johnson what's called "The Fork in the Road Memorandum," in which they said, "Now, we have really thought this over and we have two choices. We could increase military pressure or we could negotiate." And they strongly urged the increase of military pressure and Johnson went along with that. Not that he was, you know, I think he was a little unwilling, but that is another subject. Gradually, by later in 1965, by 1966, and certainly by 1967, he was completely disenchanted with the war. And he said it in public at the Senate hearings on bombing targets. And he said, "This bombing is just not going to work." The next thing he knew, he was out. And he said later he never knew whether he had quit or Johnson had fired him. And then, as Howard [Zinn] said, he was absolutely silent. You can imagine that the silence was expressed in onse sense by his opposition to nuclear weapons, which was very sincere and I'm sure Jonathan can talk about that. He and Bundy both focused on the dangers of nuclear war as if that attempt to prevent a future war was going to erase the war they had both just conducted. And then in 1995 he comes out with In Retrospect and everybody quotes, "We were wrong, terribly wrong." But if you read the full paragraph, what it says is: "We weren't wrong in our values and our intentions, we were wrong about our judgments and capabilities." And the book as a whole is an excuse. It's a struggle -- he almost comes to terms and then he runs away from coming to terms. And he does the same thing, I think, in Fog of War. And he did the same thing for the rest of his life -- and approach to what he had really been responsible for, and then a bouncing off it, too awful to face. And it happens over and over again. He says, for example, he lists all the terrible mistakes that he made -- that "they" made. He never says "I." He says "they." And he says, "We just didn't understand that Vietnam was about nationalism." He doesn't ask why they didn't understand that. There were internal critics. George Ball, Paul Capenburg, but also, he was surrounded, if you read the newspapers, by Lidman, by Morgenthau, by I.F. Stone, who was vigorously writing about the Vietnam war. By George Cain, a great historian of South East Asia. So, if he wanted to know what the upsurge, the insurgency in South Vietnam was about, he had lots of sources. He never comes close to explaining why he didn't pay attention to any of that. Instead he says, "Oh my God! We just didn't know they were nationalists." How come?

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