The fact that detainees are often subjected to a judicial process under the UCMJ or similar procedures administered by military tribunals has caused a great deal of heartburn in some quarters. The fact is that every military lawyer has a professional code of ethics that constrains him or her to represent clients zealously and that requires remaining free from any command influences. Lt. Cmdr. Charles Swift probably sacrificed his military career in order to comply with the professional code of zealous, ethical conduct- i.e., the same code under which private civilian lawyers work.
Additionally, the separate JAG chain of command and the separate ethical rules incumbent upon JAG lawyers make the military defense counsel as independent and committed as the best private counsel and probably considerably more aggressive.
Part of the reason for this is because of the quality of lawyers that are attracted to military service where the profit motive is almost nonexistent. Most of the lawyers that volunteer for active duty JAG service can earn much more money in the private or civilian public sectors. The reserve officers already work in private and civilian government jobs but choose to serve in the military knowing full well that the possibility of being sent to Iraq for at least a year is very high.
Thus,in an environment where younger, lower ranked officers are making decisions that used to be made by majors, the counsel of the able JAG lawyer becomes critical. The only control over the JAG officer’s advice is via the JAG chain of command. The command is made up of lawyer-soldiers that share a very high level of integrity.
Rule of law is at the heart of fighting asymmetrical warfare because the concept of justice is what burns in every human being’s heart- even the jihadist’s. The most hardened enemy will justify his actions based on some sense of having been wronged that proceeds out of a concept of justice. The rules of engagement and other concepts that sound theoretical within the concept of media discussions or on a blog are not at all abstract to the man or woman who is being terrorized by militias in Iraq or warlords in Afghanistan.
For example, the military defense lawyers that represent detainees (and they have been taking cases to the U.S. Supreme Court repeatedly) are displaying U.S. style rule of law to the whole world. It makes a difference in the places where there are hearts and minds to be won. There are many U.S. citizens that just can’t see it. Too bad that more journalists can’t take off their negative-tinted glasses and see things through the lense of how much our system of laws has to offer the world.
Such commitment to law is going to be tested severley if a WMD incident occurs within the U.S. Homeland. Ralph Vartabedian, in the Los Angeles Times, dated January 6, 2008 states:
About every three days, unknown to most Americans, an elite team of federal scientists hits the streets in the fight against nuclear terrorism. The deployments are part of an effort since 2001 to ratchet up the nation’s defenses.
More than two dozen specialized teams have been positioned across the nation to respond to threats of nuclear terrorism, and as many 2,000 scientists and bomb experts participate in the effort. Spending on the program has more than doubled since it was launched.
And an evolving national policy aims to create a system of nuclear forensics, in which scientific analysis could quickly identify the source of a nuclear attack or attempted attack. A key report on nuclear forensics is due next month.
[Teams of weapons designers, physicists could be the last hope of staving off nuclear attack]
If a nuclear device explodes the pressure to remove our civil liberties, including the Second Amendment, will be intense. There will be gangs, mobs of scared, hungry Americans and possibly foreign elements exploiting the situation. Terrorist teams are reportedly already in the U.S. waiting for the “perfect” day.
Who will be interpreting the rules of engagement during an extended conflict with terrorists within our homeland? You can count on JAG lawyers making many important decisions at the operational level. The President and FEMA and the state governors will be deciding who defines the rules, up to and including martial law in which due process and even the Writ of Habeas Corpus are suspended. In plain English, the President will have absolute authority if martial law is declared and habeas corpus and due process are suspended. The military, a foreign power or some outside entity (like the United Nations or NATO) could become involved in a way that is extraneous to the U.S. Constitution- a hypothetical scenario, to be sure.
According to many Constitutional law professors, the treaties (like NATO treaties) by which the United States has compromised its chain of military command, supersede the U.S. Constitution. We need to hope and pray that there is a generation of officers, including JAG lawyers, that remain loyal to the U.S. Constitution. There is justifiable concern in many quarters about how the chain of command will operate during an international emergency (think of NATO where the U.S. command structure is integrated with foreign command systems).
How many elected politicians seem to have the bedrock of honor and integrity that is on display by our armed forces every day? Look at Gov. Rod Blagojevich in Illinois, for example, or Seattle’s Mayor Nickels.
We are presently depending on government legal counsel to decide where our right to privacy stops and national security begins in ways of which we are hardly aware:
The counterterrorism efforts are becoming routine. Scientists in specially equipped helicopters and airplanes use radiation detectors to scan cities for signs of weapons. They blend into crowds at major sporting events, wearing backpacks containing instruments that can identify plutonium or highly enriched uranium.
If the many layers of federal defense against nuclear smuggling break down, these unarmed weapons designers and physicists, along with experts from the FBI, could be the last hope of staving off a catastrophic attack.
They are supposed to rush up to a ticking nuclear explosive (or a “dirty” bomb, which would disperse radioactive material) and defuse it before it’s too late— a situation often depicted by Hollywood that seems less fictional every year.
…Majidi and Krol say extensive planning and exercises have clarified the lines of authority.
The forensics study is trying to assess how authoritative the United States could be in attributing a nuclear device to a particular source and in making its case to the American public and the rest of the world. Davis said it was hoped that nuclear forensics could determine the size of a detonation within one hour; the sophistication of the bomb design within six hours; how the fuel was enriched within 72 hours; and the peculiar details of national design—“Does this look like a Russian, a Chinese, or a Pakistani device, or something we have never seen before?”—within a week.
It goes without saying that civilian and military lawyers will be involved at every level of the decision tree right down to the rules of engagement where justice will be executed against those that would decide to test the resolve of the United States.
Citizens at the grassroots will also be making some decisions. Americans are known for cooperating with duly constituted leaders and we appreciate government officials. There are sheep and wolves and sheepdogs that prepare for the day that we can attack the wolves and protect the sheep. Our heritage as a people indicates that Americans will be prepared in a crisis.
The rule of law is always at the heart of every conflict. Governing ourselves by our respect for law is a habit and a way of life that is also a strength. We need to seek out leadership that is committed to the principles of the Founding Fathers, including the Second Amendment (rst Amendment and the rest of the Bill of Rights).
We need integrity and loyalty to the oath to uphold the United States Constitution- not commitment to social and economic change. All politicians took that oath. Without the honor and integrity of our JAG force, we can quickly become like those failed countries where we are presently so busy building institutions of government. There has to be a remnant, like the JAG officers, that stand in the gap.
See Rule of Law.
The Law Office of Mark Knapp PLLC 