Sunday, January 14, 2007

Crime and Peace, War and Punishment

Haditha, Hamdaniya, Abu Gharib

War is not the within the realm of law, hence criminal laws or even the term crime does not apply. Nor should peacetime norms and especially the forms of justice and punishment. Victors justice is still what it has always been, which doesn't make it any less just. It's more important that it be expedient, that it be practical, and quite frankly it can be put aside for more important matters. For instance it is a common practice after victory to keep the enemy leader alive to negotiate a peace, or to be used as a bargaining chip. Just before his execution the very people who would have screamed loudest had we simply killed Saddam in his hole were considering that very option.

The obscene snuff film of Saddam's execution last month is actually a blessing for it highlights the bizarre inappropriateness of using trials, judges and especially lawyers in the middle of a war zone. When the snuff flick was done, and when somehow a rope decapitated his relative last week the Iraqi's justifications came back as what happened to Mussolini, what happened to Ceausescu..

The Iraqi's are right. The entire circus had nothing to do with any of the brutal realities of war in particular this one, and everything to do with post-modernist Americas legal religion. Having thrown down and trampled on all the old moralities, religion and social norms the treason generation has sought to replace all of them with the most overweening, stifling and intrusive legal code in history, that seeks every enclave of life to be regulated by lawyers, preferably lawyers dealing directly with each other and cutting out juries, elections and the great mass of unwashed, unbarred citizens. This code has subverted the foundations and seeped through every other part of American life...and now it seeks to bring war too within it's all encompassing Camp of the Saints.

Which brings us to the military. How (we are admonished) can we expect the great unwashed mass of humanity that hasn't come to the enlightened state of children negotiating with their parents through lawyers, how can we expect them to achieve our enlightened level of civilization if we aren't willing to uphold it ourselves? Clearly the function of JAG, CID and NCIS is to bring the order of the court to the chaos of the battlefield. Gentlepersons, you will begin with the traditional laws of war (never more than a luxury, usually a figleaf, often completely forgotten) which you will morph into the post-modern laws of war, jot by jot, change by change, frago by frago. You need no better a breaching tool than the Rules of Engagement. Change this daily, mission by mission, operation by operation....and do make sure there are competing versions afoot. You can't have post-modernism if anything remains objectively true. Should they protest remind them of the rule of lawyers, imply they have let down the side, and hope the natural need for discipline stifles not only dissent but thought itself.

Haditha: TIME magazine, NCIS and JAG were a little too uncritical of the Iraqi's account, and a little too eager to hang the Marines. It's coming out now...but the law should have never been allowed on the scene in the first place. It was a battle, not a crime.

Hamdaniya: Maybe if we weren't held to the "legal" standard for detaining hostiles (from experience there isn't really any standard. 1st Cav believes in holding and interrogating terrorists. 1/34 BCT doesn't, so they arbitrarily let them go) the Marines in Hamdaniya wouldn't have been looking for a bomber released three times, and had to settle for a Iraqi cop. Really....a police force so corrupt they make the Mexican cops look like Carmelite nuns....does anyone think they killed an innocent person? He was at least as guilty as everyone else who let the insurgents excavate large holes and place large bombs in them.

Abu Gharib: The best example of picking up and setting aside the law as needed. The investigation was conducted under color of command, without Taguba informing the intended fall guys he was conducting an investigation until after they talked. So much for Miranda (UCMJ Article 31B). Both the Taguba and Fay investigations make clear the MP's were following orders although as they were "unlawful" orders they have to be punished. Not so unlawful command actually means responsibility however....the Commander took the Fifth, the lower enlisted took the fall. Commanders retire, enlisted scum go to jail.
What exactly is unlawful in the context of our cities destroyed and under siege, civilians murdered as the objective both in the US and Iraq when you are holding a very bad person who knows something valuable, a person who has lost the right to ask for mercy by their own actions? In a war with no end in sight with the enemy crowing that they will show us no mercy, and laughing literally in our faces that we do?

Unlike NCIS, CID and JAG we have to endure those smirks, and watch ourselves letting them go off to take another free shot at us. I've said before on these pages....soldiers need immunity.

Until then...let's try this: if you get challenged by our upholders of ever shifting standards on your warmaking..take a page from the insurgents book. Say you know nothing, nothing was done wrong, invoke Article 31B. Keep faith with your battles, don't bow to the faithless and above all else; when they quit and look for more trusting or weaker prey, remember to smirk when they let you go. We owe at least that much to ourselves.


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