Due Credit to Mike Huckabee; Fred Thompson shenanigans

Many on the left, including Kos himself, have previously said that Mike Huckabee would be a formidable opponent for Democrats were he to get the GOP nomination. Certainly there's really no chance I'd vote for him over a Democrat. I'd say he's a little too inclined to play to the evangelical right. And he did say at one of the Republican debates that he does not believe in evolution. But to his credit he has recently made some statements which would tend to bolster his credibility. First, although it was a backhanded slap at some of his rivals for the nomination, he gave props to the Clintons for the fact that they made it through their marital difficulties still married. Considering the hypocrisy on the Right to try to stand for something like traditional family values, Huckabee seems to be walking the walk if he can give credit to the Right's Democratic punching bags (the Clintons) for having some of those values.

And then today I saw an article that Huckabee would support giving D.C. a vote in Congress for the very rational reason of

it "doesn't seem right" that citizens should pay taxes without representation and that its political impact on the parties' balance in the House "doesn't change whether it is right or wrong."

Almost makes me scared that he could be on the ticket in '08. But we are talking about the Republicans here, right? The ones holding out hopes that Fred Thompson, who is scared to debate in New Hampshire on September 5 and who is delaying his candidacy announcement until 12:01 a.m. on September 6 so that he can effectively avoid the requirement to be open about his finances until January 31, 2008. Real upstanding.

Based on the juxtaposition of these points, I'm much less worried about going against Thompson (especially with Clinton as the nominee) than I am with Huckabee.

KY ANG recruting JAGs

Here's the story. But when they say,

Positions in the Kentucky Army National Guard are traditional "mobilization day" slots, which requires attending drill two days a month and annual training two weeks a year.

I'd check the fine print to figure out when the next rotation to Iraq is.

Executive Order on torture

This is a very good post talking about the President's recent Executive Order, freeing up the CIA potentially to use "highly coercive, non-Geneva compliant interrogation techniques." If the post and articles referenced therein are correct, then a big bravo zulu should again go out to the senior service JAGs who are working behind the scenes to try and ensure that the U.S. keeps to its international legal obligations.

Of course it says something that the JAG leaders are still appealling to Republicans, rather than Democrats.

It is a good measure of the depth of current concerns that the JAG leaders have turned, yet again, to the three senior Republicans on the Armed Services Committee with an appeal to override a presidential decision. It’s not the first time this happened. And on earlier cases, the White House has responded with ferocious and vindictive attacks on officers involved. But those are stories to be developed at a later date.

Maybe it's because the president is Republican? Or because the military leaders feel more comfortable dealing with their ideological brethren? Hopefully over time those senior JAGs will be able to talk to senior Democrats. And it'll be because both of these things were fixed.

Ban Islamic Chaplains in the Military?

Here's a comment thread that's somewhat interesting on the title topic. The genesis of the comments seems to have been a radio discussion by Don Brown, a former Navy JAG and now, evidently, a christian author.

The basis of his argument seems to be that we are at war with Radical Islam (his capitals, not mine) and, therefore we can't

fund its propaganda ministers in the form of military chaplains to espouse a philosophy that calls for killing Christians and Jews, to stand in the midst of our soldiers, sailors, airmen and marines and not only espouse their anti-American philosophies, but actually recruit service members into it?

He dismisses the "fairness" of his idea by saying

Although that may not seem “fair,” “fair,” is irrelevant in the military.

I think he misses the boat on the fairness argument. It's not about fairness to the military members so much, but rather that an arm of the government would be specifically excluding a major religion from service that all other major religions can participate in. That's an issue of fairness to the country and 1st Amendment, not just the million or so Americans that wear a uniform.

You know, in my experience, chaplains in the military are more counselors than they are propagandists for their actual religion. They are compassionate, well-meaning folx who just try to get young Americans through tough times when they arise. As a defense counsel, chaplains are useful because they have legal privilege for my clients that the base mental health counselors do not. Other than that, my personal need for them is zero and the military could probably work something that would get rid of all of them. But I think it's a bad idea to say we should exclude muslim chaplains as a rule. Stupid ideas like that make me glad Mr. Brown is an Ex-JAG.

Retired Navy and Marine JAG Generals join call to grant detainees access to the U.S. Court System

From an article in the Guardian, they are: Brig. Gen. David M. Brahms, the senior legal advisor for the Marine Corps from 1985-88; Rear Adm. Donald J. Guter the Navy's judge advocate general from 2000 to 2002; and Rear Adm. John D. Hutson, the Navy's judge advocate general from 1997 to 2000.

These retired Generals have joined a number of U.S. and European diplomats urging the Supreme Court grant Guantanamo detainees full access to the U.S. court system.

The article points out that

the 355 detainees have only narrowly structured appeal rights. They are entitled to a single civilian court review of their status as enemy combatants, a designation made by three-member military panels. The detainees have no legal counsel before the military panels, which rely largely on classified information that the detainees are not allowed to see.

The Generals, in their filing to the high court, said:

The panels, called Combatant Status Review Tribunals, have been tainted by the permissible use of evidence obtained by torture...If the United States holds prisoners indefinitely - potentially lifetime imprisonment - based on sham CSRT proceedings and without providing meaningful judicial review of their imprisonment, enemies in current or future conflicts may use that as an excuse to mete out similar treatment to captured American military forces.

I echo the sentiment, but wish some senior former JAGs from the AF and Army had joined the fight.

Judge Michael Mukasey speaks on Jose Padilla

Conservative Prof sent me a link to an opinion piece from the Wall Street Journal that I felt the need to make a few comments on.

I'm on record as being in favor of full up criminal trials for all the alleged terrorists, rather than just for American citizens. But in a discussion such as this, it's probably important to make a distinction between the two. But throughout this article, Judge Mukasey conflates the status of the American citizen Jose Padilla, with that of the rest of the detainees who are facing trial (assumedly by Military Commission). In fact, he barely mentions it.

The title of his piece is "Jose Padilla Makes Bad Law." And it's an axiom that, in our system of common law where a judge's precedent can bind future judges on the same or similar facts, that "bad facts make bad law." Therefore, it's kind of ironic that the only mention of the fact that Jose Padilla is an American citizen is found in this brief section:

The unlawful combatant designation affixed to Padilla certainly was not unprecedented. In June 1942, German saboteurs landed from submarines off the coasts of Florida and Long Island and were eventually apprehended. Because they were not acting as ordinary soldiers fighting in uniform and carrying arms openly, they were in violation of the laws of war and not entitled to Geneva Conventions protections.
Indeed, at the direction of President Roosevelt they were not only not held as prisoners of war but were tried before a military court in Washington, D.C., convicted, and--except for two who had cooperated--executed, notwithstanding the contention by one of them that he was an American citizen, as is Padilla, and thus entitled to constitutional protections. The Supreme Court dismissed that contention as irrelevant.

This seems to me to be a perfect example of the axiom at work. To say that this 1942 Supreme Court case somehow is the standard that we should use for all terrorism-related decisions for American citizens truly is "bad facts make bad law."

And even if you can draw a parallel between the Commissions from 1942 to the present day Commissions and argue that the American citizen, Padilla, could/should be dealt with under that system, that doesn't justify his nearly 4 years of isolation, being kept from access to an attorney and the use of "enhanced interrogation techniques" on him.

It also bears pointing out that Judge Mukasey might have a bit of an interest in the outcome of this case. He was after all:

...the district judge who signed the material witness warrant authorizing Jose Padilla's arrest in 2002, and who handled the case while it remained in the Southern District of New York. He was also the trial judge in United States v. Abdel Rahman et al. Retired from the bench, he is now a partner at Patterson Belknap Webb & Tyler in New York.

Let's see where this one goes

Michael Weinstein of Military Religious Freedom Foundation looks set to be suing the Department of Defense "to make sure Defense treats religion neutrally, and that religious proselytizing is barred at all levels of the chain of command." He evidently sued before, but the suit was thrown out "on a technicality" according to Mr. Weinstein.

Anyway, this article features an odd quote from the AF TJAG...

We believe academy officials performed properly and that this litigation is one important step in the direction in judicial recognition of that," said Maj. Gen. Jack Rives, Air Force judge advocate general.

Odd because the quote purports to be the military "lauding" the dismissal of Mr. Weinstein's case.

Whatever. I'm in favor of his stated purpose, but not sure the suit will get any traction.