Of Dogs, Ponies, And Show Trials

Military justice is governed by rules somewhat different than civilian justice. For example, in military cases, the jury is comprised of military officers rather than civilians culled from a pool of citizens from the area of the trial. This is a significant difference. Those officers not only know each other, but also know that their superior officers will be watching the result of the trial and that could affect the futures of the "jurors."

Morris Davis, former chief prosecutor for the military commissions in Guantanamo Bay, points out the problems of military trials when the chain of command, reaching up to the White House and the Attorney General, gets involved in his opinion piece in today's Los Angeles Times. He uses the cases of Pvt. Bradley Manning and Khalid Shaikh Mohammed as an example on how simple justice can be betrayed.

"Command influence is the mortal enemy of military justice."

Robinson O. Everett, former chief judge of what is now the Court of Appeals for the Armed Forces, wrote those powerful words in 1986. They underscore the importance of banning the power inherent in command from military courtrooms. Congress wrote such a ban into the Uniform Code of Military Justice more than 60 year ago, recognizing that true justice requires the unbiased application of the law to the facts on scales that are not tipped by the fingers of extrajudicial forces. [Emphasis added]

Exactly so. And this justice must be accorded to all defendants, even those accused of committing the most heinous of crimes. This is elementary, or should be to anyone who ever successfully completed a middle school civics class. It is especially important in military commission cases because those extrajudicial forces include the chain of command suggested above.

In the cases of Pvt. Manning and Khalid Shaik Mohammed, however, the alleged legal scholars in that chain of command have already spoken and made clear the results that are expected in each case.

This past weekend, President Obama, during a fund-raising trip to California, said of Pvt Manning, "He broke the law." Not "He has been charged with breaking the law," but that he did it and needs to be punished.

Attorney General Eric Holder has been quoted as saying with respect to the case of Khalid Shaik Mohammed that "Failure is not an option."

Surely such comments from the Commander in Chief and his chief legal officer constitute "extrajudicial forces" weighing on members of the tribunals trying each of the defendants and just as surely will have an effect on the outcome of each trial.

I fear the American experiment is failing.