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Tilting at Windmills

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May 16, 2008
By: Kevin Drum

GUANTANAMO....Emily Bazelon and Dahlia Lithwick on the real heroes of the military commissions at Guantanamo Bay:

Since the inception of the commissions, the brakes have almost always been applied when some member of the military has balked, even when going along would have been the far easier course....Start with Charles Swift....Next up, Col. Morris Davis....yet another military naysayer: Keith Allred....Four others — Maj. Robert Preston, Capt. John Carr, Capt. Carrie Wolf, and Lt. Col. Stuart Couch.

....The truth is that the best thing the commissions have going for them right now are the lawyers and judges in uniform who have, albeit reluctantly, refused to play along. If they'd been out on the battlefield, they'd have killed any detainee they met as an enemy. But they're not willing to see them killed in the wake of a sham trial. That's not because they value the lives of terrorists over the lives of Americans or because they value legal formalism over the exigencies of war. It's because they come out of a long military tradition of legal integrity and independence. And much as it must pain them, this precludes them from being yes men for the Bush administration at the expense of the rule of law.

Read the whole thing.

Kevin Drum 11:31 AM Permalink | Trackbacks | Comments (15)

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If they'd been on the battlefield, they would have killed the folks who were actively shooting at them, not the ones who surrendered, who were taken prisoner, or who were handed over by third parties for payment of a bounty. How that group intersects with the actual detainees is not at all clear.

Posted by: paul on May 16, 2008 at 12:14 PM | PERMALINK

Unfortunately, nearly all of those involved did it only at the sacrifice of their own careers. They are busy weeding out anyone with even a scrap of conscience, meaning the process will be entirely in the hands of the evil and the pliant. How does that fix anything? I am not comforted.

Posted by: tavella on May 16, 2008 at 1:08 PM | PERMALINK

We have been addressing this issue for a while. It has been JAG officers who have formed a line and held it, and every time I hear of one of these officers I am thankful for them and proud to have called a few JAG officers friends and neighbors over the years. They make me proud. They are why I haven't given up hope.

Posted by: Blue Girl, Red State on May 16, 2008 at 1:22 PM | PERMALINK

Might there not also be a modicum of self-interest here, after all it is very rarely the politicians and government's legal advisers who venture onto the battlefield and risk capture by the enemy.

Posted by: blowback on May 16, 2008 at 2:03 PM | PERMALINK

How the hell do Bazelon or Lithwick know what does or doesn't "pain them?" I may know more JAGs then either of 'em and far as I can tell the good ones genuinely like doing their jobs well, period.

Posted by: Sanjay on May 16, 2008 at 2:37 PM | PERMALINK
They are busy weeding out anyone with even a scrap of conscience, meaning the process will be entirely in the hands of the evil and the pliant.
.Where's my Republic? I left it around here somewhere....

Lex est, quod rex vult..

Posted by: Davis X. Machina on May 16, 2008 at 2:37 PM | PERMALINK

Most military lawyers also don't spend much time on the battlefield, blowback.

Some of them may have started out in combat positions but by the time they reach the stage of their career where they would be involved in the military tribunals, concerns about personally being captured by an enemy are going to be very small.

And to the extend that this is a realistic concern, it just brings more shame to the civilian leadership for pushing sham trials that might someday be used as a precedent against our troops, not to the military lawyers that are jeopardizing their careers to do the right thing.

Posted by: tanstaafl on May 16, 2008 at 4:04 PM | PERMALINK

Major Michael Mori is one of those heroes.

He was David Hicks' JAG defense lawyer. David Hicks was an Australian rounded up in Afghanistan and one of the first detainees put through the Guantanamo legal process.

Major Mori went all the way in defending David Hicks, no doubt completely destroying his own career in the process, but also saving Hicks' freedom. Without Major Mori's willingness to sacrifice his career I have no doubt that our cowardly Australian government would have gladly agreed to put Hicks away in Guantanamo for at least the next 20 years. Instead he is now free.

I will never forget Major Mori being interviewed in uniform on Australian television and saying in plain language that his client had no chance of a fair trial under the Gunatanamo commission structure. (transcript here). I am convinced that it was Mori's willingness to go on Australian television and criticise his own government that forced my government to negotiate Hicks' release.

He is greatly admired in Australia and a credit to your country.

Posted by: swio on May 16, 2008 at 7:24 PM | PERMALINK

A big Semper Fi to all of them for their performance in the highest traditions of the United States military service which shows how bad the ReThuglican party really sucks sh*t.

"...It is in the religion of ignorance that tyranny begins..." - Benjamin Franklin

Posted by: daCascadian on May 17, 2008 at 2:49 AM | PERMALINK

And much as it must pain them...

I get the impression the real pain was on the part of the article's authors. At least they got to write this, to keep their "$%& the military" creds...

If they'd been out on the battlefield, they'd have killed any detainee they met as an enemy.

Posted by: SJRSM on May 17, 2008 at 7:50 AM | PERMALINK

More evidence of Bush’s tyranny, and loyalty desires that excel all else, included any puny decry of ethics. Is it any shock that Republican brand is unpopular.

Repugs are not about to excising and repudiating Bushism with McCain trying so hard to rise the image of the “respected” Bushism. I bet McCain won’t denounce Gizmo or ANY kangaroo court whackery, and McBush the II can’t slight Holy Father Bushie and still keep the faith.

Another name for Maverick is Conviction, it means protect your self-interest and don't give a damn about what American citizens think, and don't give a damn about ethics, morality or the truth.

Posted by: Me-again on May 17, 2008 at 10:06 AM | PERMALINK

Good on these brave patriots. The only problem is - the U.S. is planning to build a big new prison in Afghanistan.

Posted by: The Conservative Deflator on May 17, 2008 at 10:37 AM | PERMALINK

I can't remember, did we try Hitler's chauffeur at Nuremberg?

Posted by: Dirk on May 18, 2008 at 1:10 AM | PERMALINK

"If they'd been out on the battlefield, they'd have killed any detainee they met as an enemy."

Considering that the majority of detainees held by the U.S. were a) not captured "out on the battlefield" and were b) completely innocent, I'm afraid your little fantasies are just that -- fantasies, and sick ones at that.

Posted by: PaulB on May 18, 2008 at 4:43 AM | PERMALINK

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Posted by: Rabia on February 19, 2010 at 4:00 PM | PERMALINK
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