Seeking justice

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They don't get much publicity, but our military lawyers -- Judge Advocate Generals -- in the Army, Navy, Air Force and Marines -- are an essential source of advice, in and out of combat, to our forces, on being faithful to our laws, treaties, the Constitution and our Uniform Code of Military Justice, unexcelled anywhere in the world. But since 2002, the Bush administration has been undermining the JAG's essential independence.

The need for the independent counsel of our military lawyers has been noted by the Supreme Court (Greer v. Spock, 1976): "(The military must be) insulated from both the reality, and the appearance, of acting as handmaiden for partisan political causes." This includes whichever party is in power.

For example, in 2002 and 2003, decisions were made by civilian political officials and lawyers in the Justice and Defense Departments, and the White House, on the treatment of our prisoners at Guantanamo Bay and elsewhere. These abuses of prisoners led to the Supreme Court's stinging 2006 rebuke of the president in Hamdan v. Rumsfeld for violating our own War Crimes Act and the Geneva Conventions in setting up sham military commissions -- and unlawful interrogations of prisoners -- at Guantanamo and our other detention centers.

Military lawyers -- the JAGs -- were kept out of the particular civilian political decision-making in 2002 and 2003 that ignored the Uniformed Code of Military Justice. Had they not been excluded, the abuses at Abu Ghraib and other prisons are not likely to have happened. As the Supreme Court pointed out in its Hamdan ruling this year, Common Article 3 of the Geneva Conventions, to which we are bound, prohibit "at any time and in any place whatsoever ... outrages upon personal dignity, in particular, humiliating and degrading treatment" of prisoners -- whether they wear uniforms of another nation or are what the administration calls "enemy combatants."

On July 13 of this year, the Senate Armed Services Committee heard from JAGs in the Army, Navy, Air Force and Marines on the changes we must now make in the treatment and trials of "detainees" following the Supreme Court's Hamdan ruling. Said former Navy JAG Rear Adm. John Hutson: "I don't think we can win the war unless we live within Common Article 3 of the Geneva Conventions."

By marginalizing and ignoring the independent advice of the JAGs for the past four years, the Bush administration has seriously eroded what had been our moral leadership around the world, including among our allies, in the war on terrorists.

Now, as Attorney General Alberto Gonzales and other policymakers scramble to get around parts of the Supreme Court's Hamdan decision, they are proposing to retain certain interrogation practices that clearly violate the Geneva Conventions' prohibition of "humiliating and degrading treatment" of prisoners.

As international human-rights lawyer Scott Horton -- to whom protesting JAGs turned for advice when the clearly unfair Guantanamo military commissions and "coercive" interrogations were set up -- tells me: "They want to continue to allow waterboarding, hypothermia (subjecting prisoners for long periods to freezing temperatures) and other severe sufferings that have caused the actual deaths of prisoners."

Horton adds, "This is part of (an administration) fog machine to keep the policymakers safe from prosecution (under the War Crimes Act)."

In creating this "fog machine," the administration claims -- says Gonzales -- that it is engaging in "detailed discussions" with JAGs. But, as the Boston Globe's Charlie Savage reports (Aug. 27) concerning the new guidelines being drafted by Bush-appointed lawyers in the Justice Department: "They met just once with a working group of military lawyers on July 28, following up with e-mail exchanges that stopped after the first week of August."

As retired Maj. Gen. Nolan Sklute, the former top military lawyer in the Air Force, says, "If they are talking to the JAGs only about superficial matters -- that indicates that this is form rather than substance, and nobody (in the administration) learned any lessons" about leaving the JAGs out of the loop.

On Aug. 26, an editorial in the Reading (Pa.) Eagle tried to teach Congress a lesson: "If the rules are changed and the law allows detainees to be degraded and humiliated, the U.S. government would not have any moral basis for insisting that Americans taken prisoners abroad be treated with respect and dignity."

That's exactly what the JAGs have been saying since 2002. And a letter-writer from Glasgow, Scotland, in the Aug. 30 Financial Times adds: "It is America's loss of its moral status in terms of fairness and justice that does most to undermine its influence."

The world is watching Congress for justice. And I'm watching to see -- if Congress does insist that we observe the Geneva Conventions -- whether the president will erase that law with one of his slippery signing statements.