Yesterday, I considered Senator Lindsey Graham’s claim that figuring out how to grant terrorist detainees more and better process must be among our highest national priorities. Since Graham has no sustainable argument for this odd proposition, it is fair to ask why he and so many others hold such a view.
I think the answer resides mostly in the usual suspect — moral equivalence based on deep ambivalence about this country and manifested in an obsessive fear that we’re on the verge of becoming like the terrorists (or if you’re Senator Durbin, like Hitler, Stalin, and Pol Pot). When it comes to Senator Graham and the JAGs, a dose of parochialism and professional pride also appears to be at work.
There’s a saying (sometimes attributed to Groucho Marx) that “military justice is to justice what military music is to music.” However, it seems that a generation of baby boomer military lawyers has labored to improve and perfect military justice, and takes great pride in its effort. Some are now retired admirals and generals, and we’re hearing much more from this “brass” than from their counterparts who are actually involved in fighting terrorism. The man giving the “legal generals” much of their exposure is Senator Graham who, as a JAG Corps guy, has had some association with the effort to perfect military justice, the thought of which makes him emotional.
I have no basis for denying that the JAGs should take pride in modern military justice. But pride isn’t always a good thing, and when the military lawyer Charles Swift (who represents Osama bin Laden’s driver) claims that applying our system of military justice to people like his client “makes us undefeatable ultimately,” one wonders whether pride is coming before the fall.
In any case, the question is not whether the court martial procedures we apply to our military personnel should be a source of pride; the question is whether they should serve as the starting point when it comes to dealing with terrorists. “Due process” is sometimes defined tautologically as the process that is due. Under what theory is a foreigner who worked closely with Osama bin Laden “due” the same or similar process as someone who volunteered to defend our country but went AWOL or overacted in combat? The only theoretically sound theory I can think of is that the terrorists are roughly equivalent to wayward members of our forces. Thus, it all comes back to moral equivalence based on deep ambivalence about this country manifested in an obsessive fear that we’re on the verge of becoming just like the terrorists.