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Is Colonel Davis Another Cully Stimson?

Colonel Morris Davis, lead government prosecutor for the Guantanamo military commissions, was sharply critical of one of the attorneys representing Guantanamo detainees this past weekend. As reported yesterday in the International Herald Tribune:

The prosecutor, Colonel Morris Davis, said that the lawyer, Major Michael Mori of the U.S. Marine Corps, should not be running about Australia making public appearances in uniform on behalf of his client, David Hicks, and that Mori faced possible prosecution for some of his remarks.

"I don't know what Major Mori's plans are right now, but if he wants to come back home and represent his client, that would be helpful," Davis said in an article published Saturday by The Australian, a daily newspaper in Sydney.

"Certainly in the U.S. it would not be tolerated having a U.S. marine in uniform actively inserting himself into the political process," Davis said. "It is very disappointing to see that happening in Australia, and if that was any of my prosecutors, they would be held accountable."

He added that it would be up to the Marine Corps to decide whether Mori had violated Article 88 of the U.S. Uniform Code of Military Justice, which makes it a crime for a military officer to use "contemptuous words" about the president, vice president, secretary of defense and other high-ranking officials.

Major Mori did not take the criticism well, suggesting Colonel Davis was seeking to intimidate him and compromise his and others' defense of detainees. According to the report, Mori also compared Davis' comments to the now-infamous remarks of former Pentagon official Cully Stimson, who made comments seeking to discourage the private representation of Gitmo detainees. (See here for a chain the VC's posts on the Stimson controversy.)

Based upon this report, Col. Davis' comments are not remotely comparable to those made by Stimson. Davis did not challenge the fact of representation, nor did he suggest that Mori or anyone else should suffer consequences for representing detainees. Rather, he criticized that manner in which Mori is representing his clients. Moreover, Davis is not challenging Mori's legal advocacy on behalf of detainees, but Mori's out-of-court conduct, particularly various political comments Mori has allegedly made overseas. Such criticism is not tantamount to lawyer intimidation, nor does it compromise any detainee's defense. At most, it seems that Davis would like Mori to spend more time preparing his defenses in court, and less time courting international public opinion.

Colin (mail):
Apropos of nothing, "Colonel Morris Davis" and "Cully Stimson" both sound like vintage 19th century names. In my mind's eye, both of them have huge muttonchops, drooping mustaches, and are wearing morning coats.
3.5.2007 9:28pm
Mark Field (mail):
I agree with you that there are differences. One more significant feature here, though, is the (implicit?) threat to bring charges against Maj. Mori under the UCMJ. That's not, directly, suggesting a "consequence" for representing a detainee, but it could force him to withdraw as counsel. If the charge is something as nebulous as "criticizing officials" -- something ordinary attorneys and citizens would consider well within their rights -- then I think you have to question the prudence (to be polite) of Col. Davis's statement.
3.5.2007 9:29pm
Commenterlein (mail):
"At most, it seems that Davis would like Mori to spend more time preparing his defenses in court, and less time courting international public opinion."

Mmmmh, a lead prosecutor is threatening a defense lawyer in order to get the defense lawyer to spend more time preparing his defense. Somehow that doesn't strike me as the most obvious interpretation of the story. In fact it strikes as an extremely far-fetched interpretation.

In any case, here is some more information about the case:

http://www.talkingpointsmemo.com/archives/012785.php
3.5.2007 9:31pm
DG:
It would not be up to this prosecutor on whether the defense attorney violated Art.88. And, frankly, even if he did, the worst that might happen (in reality) is that Mori might get the boot and go make three times as much money in private practice. There is not much risk here for Mori, as he's almost untouchable in his current role. Will he have a career in the military after this? It sounds like he doesnt care, and, in fact, is laying the foundation for some civilian work.
3.5.2007 9:36pm
JunkYardLawDog (mail):
Mark Field,

Officers in the military don't have free speech rights with regard to the Commander in Chief and military matters. This is a very important matter critical to the operation of the military and its essential mission. Those laws, passed by democratic congresses no doubt, apply to military officers that happen to be lawyers just as they apply to the real warriors in the military.

If this officer violated these laws, he should be prosecuted to the same extent any other officer would be prosecuted and his law breaking should not be excused on the basis that he is a lawyer or who he represents. There are plenty of non-law breaking military lawyers around to take this guys place should he be properly court-martialed for his inappropriate behavior.

What civilian lawyers might do that are not governed by these military regulations/laws is completely irrelevant.

Says the "Dog"
3.5.2007 9:39pm
John (mail):
Is there a gag order in the gitmo cases? If not, why shouldn't the guy have the same freedom to jabber about his case as regular defense lawyers occasionally do? I understand that the UCMJ puts some restrictions on what he can say, and he should be urged (intimidated?) to refrain from violating the UCMJ, but otherwise, I don't see what he's doing wrong legally.

Perhaps he sees himself imitating Wm. Kuntsler &his ilk, who were never at a loss for words about their cases and clients--not always to their clients' advantage, I would add, but also not in violation of any law.
3.5.2007 9:42pm
Bill Poser (mail) (www):
This is not an ordinary case. The Bush Administration has done everything it can to keep the treatment of the detainees outside the rule of law and such rights as they have been accorded are due in considerable part to political pressure. Were Major Mori to restrict himself to legal representation in the narrow sense he would not be doing his duty as an advocate. Moreover, there has been no suggestion that Mori has been anything other than dilligent in his representation. Colonel Davis just doesn't like the fact that some military attorneys have the guts to stand up to his kangaroo courts.
3.5.2007 9:43pm
Jim Rhoads (mail):
As a former military lawyer, I think both lawyers should button their respective lips.

I agree with Jonathan's assessment that Davis's comments do not rise to the level of Stimson's ill chosen comments. But, as the chief prosecutor, it is, IMO, not his place to criticise one of his opponents. That smacks of command incluence for one thing, and is generally quite ineffective for another.

That, however, does not excuse Davis for trying his case in the Australian Press.
3.5.2007 9:43pm
UglyDuckling (mail):
Jonathan,

I'm confused as to whether you're being intellectually dishonest or simply naive. The two situations aren't identical, but there are obvious parallels.

For example: Stimson attempted to intimidate lawyers into ceasing the representation of detainees. Mori is alleging that Davis is attempting to intimidate him (through threat of prosecution) into ceasing his representation of his client.

If you can't see the impropriety in threatening a detainee's lawyer with actual prosecution for making disparaging remarks about the government officials responsible for that detention, then I have to question your vision. How can a lawyer represent his client fairly if he's not allowed to freely criticize his opposition?

Although Davis claims to be criticizing conduct rather than the fact of representation itself, whether this is true or not in fact is unclear. It's also far from clear to me that the opposing prosecutor in your case is the one who should be making such calls in the first place. This comes uncomfortably close to a naked threat.

Finally you come to these conclusions based on a sketchy story which fails to indicate which particular remarks Davis is threatening prosecution over. How can you fairly evaluate whether Davis's claims have any merit, or whether (as is being insinuated) Davis is threatening Mori because he disagrees with his legal position?
"Based on this story" doesn't cut it - there are obvious missing details that would require further investigation before reaching any conclusion, whether in favor of or opposed to Davis's conduct. These details can be found in plenty of other googled reports.
3.5.2007 9:43pm
Kovarsky (mail):
UglyDuckling,

(1) I don't see where Davis threatened him with prosecution. He said that the Marines should determine whether he violated a provision.

(2) Davis doesn't seem to be questioning the representation; he seems to be questioning the propriety of activity beyond the scope of that representation.

It is precisely the profound reprehensibility of Stimson's remarks that requires us to understand when the mistake is repeated and when it is not. I fear that if we go up in arms about something like this, then it sacrifices legal credibility on the more egregious violations.

Stimson went after the fact of representation and implied that "pro-terrorist" organizations were funding it, and gave, with a wink and a nod, a word of encouragement to any big company willing to ditch a client on that basis.
3.5.2007 9:56pm
John Steele (mail):
I know next to nothing about military rules and ethics. For me, the news story focuses attention on an aspect of legal ethics that is under increasing strain: the notion that legal advocacy can be (and should be) neatly separated from public relations.
3.5.2007 10:49pm
John Steele (mail):
Ugly Duckling,

This incident involves one side's lawyer criticizing the other side's lawyer -- which, alas, is about as common an act for lawyers as having a morning cup of coffee. The Cully Stimson incident was about cutting off a litigant's access to lawyers -- a far less common and far more serious matter (even if, as it turned out, Stimson's words immediately backfired on himself).
3.5.2007 10:54pm
ESD:
JunkYardLawDog:

It is true that some provisions of the UCMJ, including Art. 88 and Art. 134, place limits on speech by military officers that do not apply to civilians. However, the statement that you made, "Officers in the military don't have free speech rights with regard to the Commander in Chief and military matters," is simply false, at least so far as it is a blanket statement. Reading the relevant commentary on Art. 88 in the Manual for Courts-Martial might help:


b. Elements.

(1) That the accused was a commissioned officer
of the United States armed forces;
(2) That the accused used certain words against
an official or legislature named in the article;
(3) That by an act of the accused these words
came to the knowledge of a person other than the
accused; and
(4) That the words used were contemptuous, either
in themselves or by virtue of the circumstances
under which they were used.

...

If not personally contemptuous, ad-verse criticism of one of the officials or legislatures named in the article in the course of a political discussion, even though emphatically expressed, may not be charged as a violation of the article.



(emphasis added)
The key to Art. 88 is not mere criticism, but specifically expressing contempt toward one of the officials listed. The MCM commentary makes that very explicit.

Even given that limitation, the fact that speech by military members can be lawfully limited in certain contexts is a very different matter from saying that military officers simply do not have free speech rights with respect to certain subjects. Members of the armed forces retain the full protection of the Constitution, including the First Amendment.
3.5.2007 10:55pm
RBG (mail):
The whole notion that traveling the lecture circuit in Australia constitutes representation of his client strikes me as quite absurd. That aside, one wonders just how far some of the commenters here would be willing to go. Let's imagine that Hillary was president, and a certain group of leading officers were found to be plotting a coup. After their arrest, they are tried under the UCMJ. Lo and behold, their counsel starts making the media and lecture circuit rounds, explaining how the coup-plotters were justified because Hillary's military/foreign/domestic (take your pick) policies were undermining the republic. No problem? Really?

I find it remarkable that folks on the left, of all people, would be so sanguine--as they have been through the current war--with active duty officers inserting themselves into the political dialogue, and positively ecstatic when they stand in opposition to the presidenet. Their alignment with your policy preferences may give you the tinglies, but isn't there something to be said with ensuring that the military--both corporately and individual officers--has no role in domestic politics and are completely and, with very rare exceptions, completely subservient to the political branches (primarily the CiC)?
3.5.2007 11:05pm
Kovarsky (mail):
RBG,

can you please elaborate on what you mean? is this just an arbument about how "the left" would only resist "military prosecution" of the lawyer because they disagree with the president? or is it something more sophisticated that i'm not understanding?
3.5.2007 11:18pm
logicnazi (mail) (www):
So while it does seem to me that there are differences between this case and the stimpson matter (based on very little knowledge) the significance of these differences depends on what your idea of the breadth of a vigorous defense.

It seems clear that public opinion can have an influence on verdicts, particular in trials involving so much nationalist sentiment, political implications and public fear (of terrorism). If the members of the jury, or judges, go into the hearing already immersed in the view that this individual is a dangerous terrorist the defense is at a serious disadvantage. If we won't tolerate forcing the defendent to dress in prison garb during trial for fear of introducing bias how much worse is it for the jurors to repeatedly hear the defendent deemed a proven terrorist in the media without any presenting a defense?

Given this fact is not preventing juror taint a necessary and proper function for a defense attorney? Given the defense attorney can hardly ask for a gag order to be slapped on the US president or other major political figures (free speech) it seems his only alternative is to counter the negative media perception of his client. Hence in situations where the defense attorney might reasonably believe preserving jury neutrality requires getting into it in the media must he not have the freedom to best represent his client?

Jim Rhoads,

I agree that usually both attorneys should shut up and leave the media out of it. However, a case like this is a bit different. Political reality/calculations require that the government offer some justification to the media for putting an Australian on trial for terrorism. So if both the prosecutor and defense attorney shut up Hicks end up disadvantaged because someone is still giving out incriminating details to the press. Once Hicks became a household name it seems the only fair way (and still not very fair given the government's ability to choose what to unclassified) to procede was to let both sides tell the media at least the broad outlines of their side.

In short compare the number of appearances of the defense attorney to the number of press conferences given by US government officials suggesting he is a terrorist.

Dog,

So what happens if accusing the president of treason or other horrible acts is a necessary part of a defense? What if the defense is the president is framing him because the defendent saw the president having an affair (or committing murder)? What if the defense is that the defendent was ordered by the president to do some awful thing or is taking heat for a secret agent?

Many generally applicable military rules need to be changed for military lawyers (e.g., they can't let themselves be ordered to scuttle the case) and this may be one of them.
3.5.2007 11:19pm
logicnazi (mail) (www):
RBG,

How can you claim that arguing the government is trying to unfairly railroad these detainees counts as inappropriate political interference but active duty military officers giving press conferences defending the fairness of the military commission process is perfectly okay? You can't have it both ways.

I have heard tons of active duty military officers insist to the media that detainees at gitmo are not tortured for confessions. So it can't suddenly be political interference for the defense attorney to insist that confessions at gitmo were extracted by torture (hypothetically).

I think the test for inappropriate political interference has something to do with the relation of the opinion to their military duties. The commander of a prison can explain to the press that no one is being tortured there because he is speaking in a way reasonably related to his duties, i.e., keeping the public informed about what is going on under his watch. It wouldn't be okay for some random lieutenant who had nothing to do with the prison to do the same. Similarly it isn't okay for the random lieutenant to go around in uniform on active duty and alleged that torture is taking place there but a defense attorney for someone at the prison may because it is reasonably related to his responsibilities.
3.5.2007 11:31pm
Jim Rhoads (mail):
logicnazi:

Are you suggesting that part of the strategy of the defense is to turn Australian opinion against the process of the US military tribunal so that Australian diplomatic pressure is exerted on our government for leniency, etc?

If so, I understand your argument. Generally, were I the Major, though, I would try to enlist civilian counsel to undertake that task.
3.5.2007 11:31pm
logicnazi (mail) (www):
Also I wanted to ask a question for the commenters here:

What do you think the responsibility is for a defense attorney to speak out against a judicial process he things is fundamentally unfair (say military commissions) and unconstitutional?

I think many people hear would try and suggest that he should only raise this issue on court not try to whip up public opinion about the matter. However, this is very troubling if you also believe congress can strip jurisdiction from the courts or that SCOTUS should invoke the political question doctrine in these sorts of cases.

If the correct check on congress establishing kangaroo courts and revoking SCOTUS review is public opinion and political pressure doesn't that mean that fairness demands the people being tried have the chance to make their case to the people? If they aren't allowed to talk to anyone but their lawyer doesn't this mean it has to be their lawyer who makes this case to the public?
3.5.2007 11:35pm
plodding blockhead:
I don't pretend to know anything about military law or ethics. But from what I gather from the press coverage, Mori has been very effective in pressing Hicks's case in Australia. As a result of those efforts (and no doubt many other factors), the Australian government has been pressuring the US government to act in the Hicks case, and it has - by charging him with a much less serious offense than was originally threatened. That looks to me like effective advocacy.

Mori is using the press to obtain political and diplomatic pressure to help his client. I can't see why that would be improper - especially when the very process by which his client will be tried is now a hotly contested political question in the US, and an issue that matters to the Prime Minister of Australia. Context matters here.

As for Colonel Davis's statements, I can't find any actual quotes attributed to Davis, but the IHT's paraphrased statement suggests that he made an empty threat - that it would be up to the Marines (i.e., somebody else) to decide whether Mori had violated Article 88. It's not as bad as Stimson's comments, which baselessly suggested that the lawyers for the detainees were funded by terrorists. Still, an unjustified threat by a prosecutor that a defense attorney's lawful, effective advocacy could cause the defense attorney to be charged with a crime is not to be encouraged.
3.5.2007 11:37pm
RBG (mail):
My point is simply that there is a not-insignificant value (given the experience of Latin America, and indeed, much of the non-English-speaking world, perhaps a paramount value) in a complete bar on military involvement in political affairs. This value has often been treated as inconsequential in recent years by many on the left as a matter of convenience--generally to score (often valid) political points against a despised president. My question is whether this is wise? Is chipping away at this barrier between military and civilian or upending the complete subordination of the military to civilian authority truly in the interest of folks who are left of center (given the political leanings of most military folks) or, for that matter, of the republic? Just one of those ironies of these times (along with friends on the left cheering on efforts by an intelligence agency (!) to insert itself into domestic politics) that I find both entertaining and disturbing.
3.5.2007 11:41pm
Christopher Cooke (mail):
Colonel Davis' remarks are not as bad as Cully Stimson's. Only the last part, about Article 88, strike me as ill-chosen. He essentially used an artful way of implying that Major Mori's remarks may be illegal, without saying they were. Obviously, Colonel Davis is not a political hack, like Mr. Stimson, but an experienced litigator.
3.5.2007 11:48pm
RBG (mail):
I don't know what indication I've given that suggests I'm trying to have it both ways, but whatever. At any rate, logicnazi's rule strikes me as far too broad: it would seem to permit Gen. Petraeus (or his subordinates) to take to the airwaves to pontificate about how the President should not have ordered the surge and that immediate withdrawal is required. Or that the President had committed us to a flawed plan because he has barred the use of tactical nukes. And I suppose that logicnazi believes that Truman's firing of MacArthur was an ill-conceived and unjustified political act in the face of legitimate public criticism.
3.5.2007 11:51pm
Kovarsky (mail):
logicnazi,

of course they're both "effective advocacy" in the sense that they yield better outcomes for clients. the difference is that one arguably breaches a professional norm of lawyering and another one doesn't. in the end, it will be the government that benefits from the absence of any bright lines, and it seems to me the most sensible line to draw, in terms of what is intolerable, is discouraging representation of clients.
3.5.2007 11:56pm
JunkYardLawDog (mail):
ESD, I didn't mean my statement about free speech to be as broad as it was written. I also appreciate your quotes of and clarifications with regard to the UMCJ provisions.

Logicnazi, there is a difference between presenting a case in court and making political dinner speeches in uniform. A military officer who happens to be a lawyer is not entitled to violate the UMCJ even if by so doing he might create a more favorable political outcome for his client. Its just that cut and dried in my opinion.

We are at war and *if* this guy violated the UCMJ he should be prosecuted to the same extent any other officer would be who had done the same. This should apply regardless of the fact that he is a "lawyer" or has a "client to represent". He shouldn't get special treatment for his conduct either more lenient or less lenient than any non-lawyer doing the same thing.

If a non-lawyer officer went around in uniform making the very same speeches would be prosecuted than so should this guy. If such an officer would not be prosecuted for that same conduct, then neither should this lawyer.

That should be the standard. The "lawyer" title is not a privilege to violate the law.

Says the "Dog"
3.6.2007 12:29am
midatlantan (mail):
Jonathan wrote: "Based upon this report, Col. Davis' comments are not remotely comparable to those made by Stimson. Davis did not challenge the fact of representation, nor did he suggest that Mori or anyone else should suffer consequences for representing detainees. ...Such criticism is not tantamount to lawyer intimidation, nor does it compromise any detainee's defense. At most, it seems that Davis would like Mori to spend more time preparing his defenses in court, and less time courting international public opinion."

I'd second UglyDuckling's question -- Is Jonathan being intellectually dishonest or just naive? Although I'd throw in a third to give him benefit of the doubt -- perhaps he's just trying to be provocative in posing the question?

Obviously, the two men - Davis and Stimson - *are* "remotely comparable. They are both high-ranking officials in the military chain of command who have made derogatory statements at defense counself for detainees, designed to subdue their zealous advocacy for those clients. Yes, there are differences. Stimson attempted to shame large law firms (outside of the military chain of command) into adandoning their clients (or perhaps his intent was retribution, or intimidation toward others lawyers who might be inclined to represent detainees in the future). Cully's plan backfired.

Davis's comments, by contrast, were designed to tone down the zealous advocacy of his opposing counsel by threat of legal prosecution for such advocacy. One could say Davis framed his threat in a more guarded manner, but when it comes down to it, Davis's threat is more serious. David isn't the prosecutor who'd be in a position to charge Mori himself, but he *is* in the military chain of command, and Mori remains subject to the UCMJ.

If a small-time solo practioner were representing an unpopular client in a federal prosecution, and the AUSA in that case were to make a public statement in a national newspaper suggesting that the defense attorney should be prosecuted by state authorities because of the defense counsel's statements in representing his client (even if those statements included harsh criticism of the law at issue, or various federal or state policies or politicians), I should think everyone at Volokh -- including Jonathan -- would be at least a bit outraged.
3.6.2007 12:54am
Christopher Cooke (mail):
I have reviewed Mori's comments as they have been reported in the Australian press and Article 88. He essentially accuses the Military Commissions of being unfair and not providing Hicks with due process, urges that Hicks be afforded a civilian trial or a military courts-martial and seems to be effectively lobbying Australian public opinion around his cause. Nothing in these remarks remotely strikes me as contemptuous of the President, the Secretary of Defense or of any military branch (Article 88 stuff). I therefore conclude that Davis' comments are mean-spirited and were made because Mori is being effectively in bring political pressure to bear on the DoD through our ally, the Aussies.
3.6.2007 1:32am
Kovarsky (mail):
midatlantan-

i don't understand. i'm not "outraged," and i'm hardly sympathetic to this administration. in stimson's case, he was thuggishly penalizing the fact of representation - hey wall street companies, drop your law firm if they do gitmo litigation. in davis's case, any "threat" was not accompanied by a FOIA request, and it is not directed at the fact of representation. those aren't "minor" differences. sure, they are comparable, in the sense that the two situations illustrate what is versus what is not in bounds for counsel seeking to criticize his adversary.

but if you want to say "so what" to those differences, please explain why the subject matter of the criticism is somehow less important than identity of the criticizer.
3.6.2007 1:42am
midatlantan (mail):
Kovarsky - As I acknowledged, there certainly are differences between the two situations. Davis's comments weren't given in the context of a FOIA request, and he doesn't seem to have been acting in coordination with some private group investigating or calling for a boycott of Mori (or his family, or prospective private-sector employers, etc.) (And as an aside, I'm not clear on whether Stimson was acting in coordination with, or merely reacting to, the FOIA request, but I don't think it renders his statements OK if he were merely reacting.)
And no, Davis is not attempting to "penalize the fact of representation." That is a difference between the two cases, but not as significant a difference as some make it out to be. I don't know the precisew degree of freemdom Mori may have had to decline the case, but as a general matter, military counsel have much less leeway to pick and choose their clients than large private firms do. I agree that if Davis were penalizing or threatening Mori for the fact of his representation, it would be outrageous. But it wouldn't be the equivalent of what Stimson did. The "fact of representation" in this case is something assigned and ordered by the military itself, not a choice made by a private firm's pro bono committee. Such statements would seem awkwardly -- if not perilously -- close to encouraging military defense counsel to disobey their orders or abandon their assignments. Had Davis made such statements, there would be a dust-up to be sure, but everyone would recognize how ridiculous they were, and overall they wouldn't be very intimidating. Here, Davis outwardly concedes that it's OK for Mori to represent his client (indeed, Davis claims to encourage it). So he's not threatening Mori for engaging in pro forma representation of his client -- just for representing him zealousness. The overall effect is equally pernicious, if not noreso in Davis's case.

Given that the military tribunal system for trying detainees lacks the long-established norms of the civilian justice system and has been the subject of so much litigation, one would think the military would be walking on egg shells to make sure everything goes smoothly. That makes Davis's comments that much more alarming.
3.6.2007 9:00am
Anderson (mail):
But from what I gather from the press coverage, Mori has been very effective in pressing Hicks's case in Australia. As a result of those efforts (and no doubt many other factors), the Australian government has been pressuring the US government to act in the Hicks case, and it has - by charging him with a much less serious offense than was originally threatened. That looks to me like effective advocacy.

Exactly. Mori recognizes that this detention has VERY LITTLE to do with "the law" (a concept rejected by the White House whenever it proves inconvenient) and that a political solution may be what's best for his client.

Frankly, I'm impressed that Mori is more interested in getting his guy free than in litigating the case.
3.6.2007 9:28am
logicnazi (mail) (www):
Jim Rhoads, (sorry no time to reply to others now)

Well getting australia to assert diplomatic pressure is one possible strategy the lecture circuit could have.

Also I think that changing public opinion/media coverage so it is more favorable to his client is another. Why in australia? Maybe because it is easier to get speaking assignments there? Maybe because he thinks that it is easier to influence US media by changing the attitudes in Hick's home country. I don't think these are necessarily the best ways to accomplish the media balancing but once you grant it would be okay for him to do the lecture circuit in the US it seems that this is at worst a plausible (but wrongly chosen) strategy. We can say he should have concentrated on the media in the US but the choice of the US vs. australia hardly seems to make it different in kind. Besides, I have heard him speak in the states.
3.6.2007 10:32am
logicnazi (mail) (www):
RGB,

So you think every press conference that generals or other military men held where they stated that there was no torture at Gitmo deserves discipline?

Anyway I'm not so much convinced the particular rule I gave is the right one. It was just a stab at the right direction but I just wanted to get the point across that no simple universal rule is going to work here.

Either we tie the military's hands and don't let them deny the ridiculous and horrible charges directed against them by protesters (say who allege people at gitmo were murdered) or we need some looser idea of what counts as political interference. Once we get to the point of allowing military men to deny people were tortured at gitmo how can it be unacceptable for them to claim they were tortured?
3.6.2007 10:37am
Roger Richards (mail):
I'm a reserve military lawyer, and can tell you that when a Colonel, even of a different service, suggests, even indirectly, that a Major may have violated the Uniform Code of Military Justice, it's an intimidation tactic. Alot of these cowards hide behind their exalted military ranks (I know, I'm a Colonel, too) and it galls them to be criticized by a lower ranking officer. Don't mistake this for anything other than what it is -- another heavy-handed misstep by those on the wrong side of law and order.
3.6.2007 1:15pm
ed o:
what exactly does the JAG corps do to assist the military in winning wars? is what they do somehow more important than winning a war? how is the size of the present JAG corps relative to its size in WWII up to now, when the military was much larger. is it simply a self serving bureaucracy where, much like US Attorneys offices, people can serve their time until lining up that private practice job? are attorneys working for the JAG corps able to lie through their teeth like defense attorneys do so often in the civilian world?
3.6.2007 1:25pm
ed o:
my quick google has shown the JAG corps has grown since the end of the Cold War while the rest of the military (ie. the ones actually doing the fighting) has shrunk. perhaps this is the reason for the aggrandizement of the position, completely out of proportion to what they actually add to our ability to protect this country.
3.6.2007 1:30pm
logicnazi (mail) (www):
ed o:

What the JAG corps does for the military is create the perception that members of the army will be given a fair defense and not bulldozed for political expediency or a PR win. They also prosecute those who break military law detering unacceptable behavior like revenge killings.

In short JAG serves an important purpose in maintaining both the professionalism, moral and enlistment of the men who fight our wars. If you don't think people get a fair shake in the military you are going to be a lot less likely to join and die for it.

It is not only unsurprising but necessary that JAG has grown since the cold war. With soldiers in Iraq and Afghanistan enlisted men are a lot more likely to go AWOL and soldiers are more likely to misbehave or incur serious infractions of the rules than when their job was to man large permanent bases in Germany. I mean just look at the cases where soldiers are charged with killing unarmed Iraqis and you have answered the question about why we might need a larger JAG core.

As an aside this is the other thing JAG does for the military. By prosecuting soldiers who misbehave it partially insults the US from the bad PR caused by rogue soldiers without requiring us to turn out men over to the Iraqis.
3.6.2007 3:22pm
ed o:
nice try, but our soldiers murdered, raped and stole during WWII with a much riper area to claim a bounty from than Iraq-all with a much smaller JAG corps. Further, the JAG corps was growing before Iraq and Afghanistan while the rest of the military was shrinking, so your theory goes by the wayside. with the name, one would think more logic, not just political nonsense. will the JAG corps help us win a war-I still see nothing to answer "yes" to this question. can they assist us in losing one-I am afraid the answer to this one is undoubtedly "yes" as members of the Corps work as flaks for the enemy, just as the pro bono efforts of the best and brightest lawyers in the land assist the enemy.
3.6.2007 3:42pm
midatlantan (mail):
Wow, ed o, your vitriol toward the Jag Corps is really uncalled for. Every JAG officer I've known has been among the most honest and upright soldiers/sailors/marines I've ever met (and yes, that "JAG officer" line was a gimme -- so laugh away, ed). JAG duty certainly isn't the fast-track to riches. If money is what he or she is after, a law school grad would be better off going straight to the private sector. So no, for most JAG folks, it's not the money. Do they help "win wars"? Well, I'd take issue with whether that's the sole or overriding goal of the military, especially in peacetime. Perhaps a better way of putting it would be defending the country. And the JAG Corps certainly do contribute to that mission. If nothing else, they help keep the enormous machinery of the military running, much like the gazillions of other non-combat troops do (like say, MPs or clerks). In a military that is larger than many US states themselves, I'm assuming you would agree there are going to need to be some rules, those rules will frequently be broken, and that disputes will arise about those rules. In other words, there's got to be some sort of functioning legal system. I'm not sure what you're thinking the alternative would be. Should this all be handled by civilian law and courts, rather than the UCMJ and the military itself?
3.6.2007 7:08pm
logicnazi (mail) (www):
ed o:

Hearts and minds didn't matter so much in WW II.

Besides WW II was about draftees, numbers and industrial might which is a lot different than a professional highly trained army with strategic sergeants.

The fact that it was growing before Iraq and Afghanistan just shows that the military recognized that the change of threat from large battalion level clashes to smaller scale conflict with more control devolved to the troops required more JAG officers.

Besides, you haven't even given any evidence that we had the 'right' number of JAG officers in the cold war. Maybe the military would have been better then. Frankly you haven't given the slightest argument that shows JAG numbers are hurting rather than helping. Your conclusion seems to be more based on animosity than evidence. If you don't have hard evidence I am much more inclined to trust the military higher ups to run the army well than you.
3.6.2007 9:06pm
ed o:
given any evidence that we had the "right number" of JAGS? it is impossible to give an evidence on the right number-what we do know is that, while the number of people doing the job of fighting is going down, the number of lawyers doing whatever is going up. if the JAG corps helps to win wars, that might make sense. you have presented zero evidence that the JAG corps does help win wars. if you have such evidence, please put it out there for review. it sounds a lot to me like a standard self serving bureaucratic niche in the military which has taken on a life of its own. perhaps, using your logic, we can increase the JAG numbers and simply assign a lawyer to each service member. that would be the best of both worlds-complete due process and inability to fight a war in one package.
3.7.2007 12:01pm