War Heroes

Dahlia Lithwick pens an pens an appreciation to the men and women of the U.S. Armed Forces who have stood up for America’s proud history against the politicized show trials at Guantanamo Bay:

The truth is that the best thing the commissions have going for them right now are the lawyers and judges in uniform who have, albeit reluctantly, refused to play along. If they’d been out on the battlefield, they’d have killed any detainee they met as an enemy. But they’re not willing to see them killed in the wake of a sham trial. That’s not because they value the lives of terrorists over the lives of Americans or because they value legal formalism over the exigencies of war. It’s because they come out of a long military tradition of legal integrity and independence. And much as it must pain them, this precludes them from being yes men for the Bush administration at the expense of the rule of law.

Critics of the president’s military commissions worried that the bodies would do their work in secret, in the legal shadows, answering only to the president as their commander in chief. But the soldiers and lawyers who insist on holding the proceedings to a higher standard have, at crucial moments, operated in the open. They’ve navigated by the light of the Constitution, sometimes at an enormous cost to their careers. Their performance is the best thing the Guantanamo commissions have to offer.

Read the article for specifics. These soldiers are displaying a remarkable integrity in the face of what must be enormous pressure.

FILED UNDER: Law and the Courts, Military Affairs, Terrorism, US Constitution, , ,
Alex Knapp
About Alex Knapp
Alex Knapp is Associate Editor at Forbes for science and games. He was a longtime blogger elsewhere before joining the OTB team in June 2005 and contributed some 700 posts through January 2013. Follow him on Twitter @TheAlexKnapp.


  1. DL says:

    Speaking of show trials by the government, someone ought to compare this stuff to the abomination of justice show trials of the Lincoln conspirator’s trial. Civilians forced into a military trial (only needed a 60% to hang them that way)ordered by new President Sam Johnson whose Secretary of War said he wanted them tried and executed before Lincoln was buried. Headed up by a military friend of Lincoln. The accused were not allowed to speak on their own behalf. Over the six week long trial, every objection their attorneys raised was overruled. Every objection by the prosecution was sustained. President Johnson (himself a target of the assassination attempts} ignored a DC Supreme Court Judge’s writ of habeus corpus(trying to get it moved to a civilian court), forcing him to withdraw it. The accused’s attny’s were allowed a farcical three days to prepare their case and interview hundreds of witnesses – And those were citizens of the USA – non combatants so to speak. But then again, Lincoln won the war and was a loved president. (at least in the victorious north) What constitution?

  2. James Joyner says:

    And the Court did, belatedly, rule that practice unconstitutional in ex parte Milligan.

  3. Beldar says:

    I’m surprised that anyone is surprised that the defense counsel for the detainees aren’t in the tank. Even in this unusual context, the adversary system depends on the advocates for each side doing their respective best, within the confines of the law and the canons of ethics, to diligently argue their respective side’s positions.

    On the other hand, some of the present or former defense counsel involved have strayed outside their appropriate bounds by miscontruing or taking out of context certain high-level officials’ comments in an attempt to argue that the outcomes of the proceedings are being pre-determined (uniformly in favor of conviction). By pretending that there’s corruption where, in fact, none exists, they are not ultimately advancing their clients’ interests.

    Put another way: I don’t presume that just because some of the defense counsel are speaking out against “the system” or “the powers that be,” all of their criticisms are automatically proved thereby to be justified. And I think that’s the assumption Ms. Lithwick is making and urging, without adequate critical thought. In short, Ms. Lithwick will always root against the team that she perceives to be aligned with George W. Bush, merits be damned.

  4. Beldar says:

    BTW, Alex, your characterization of these as “show trials” is a pretty good clue that you’ve already reached a final judgment about them, notwithstanding the fact that none of the trials have yet proceeded to final judgment. “Show trials” are what went on in the Soviet Union under Stalin. By parroting that term, you’re underestimating (and, I hope, unintentionally) insulting all of the participants on both sides of these proceedings — which assuredly will not extend all of the elaborate protections of the normal, non-military American criminal justice system, but will nevertheless provide (in accordance with Congress’ specifications) more due process and procedural rights to these accuseds than most accuseds get anywhere else in the world. I hope you’ll re-think that choice of words (and its strongly implied comparison to “show trials” conducted by genuinely authoritarian regimes).

  5. Alex Knapp says:


    It’s not just defense attorneys. It’s prosecutors and judges there, too.

    And I chose the words “show trials” carefully, because that’s what too many people in the government are trying to turn them into. They may not end up that way, but that’s still up in the air. If they don’t, it will be because of the military upholding its proudest traditions.

  6. c. wagener says:

    How are “show trials” and a concern for “bodies would do their work in secret” reconcilable. Show trails are very public and used for propaganda purposes. The closest thing we have to that in the U.S. are congressional hearings of companies involved in oil, tobacco, etc.

    The fact that many Gitmo detainees have returned to the battle field doesn’t point to an assembly line of guilty verdicts, rather the opposite.

  7. Christopher says:

    The Constitution doesn’t apply here, Alex! The prisoners aren’t being held in America, hence, the reason they are in Guantanamo Bay! And the soldier lawyers and judges are doing what they are supposed to be doing, defending them. Having a defense doesn’t grant the detainees non-existent rights, it just gives them a defense.

    Gawd you liberals are too much! Bleeding hearts all of ya! I bet if you were on the battlefield, Alex, voluntarily charged with protecting Americans and even yourself, you would let the other guy shoot you dead before you ever fired a shot. You liberals are pathetic!

  8. And I chose the words “show trials” carefully, because that’s what too many people in the government are trying to turn them into.

    Who, exactly?

  9. graywolf says:

    “….sometimes at an enormous cost to their careers.”

    Yeah, real f****** heroes, and smart too.
    Throw their careers under the bus for a terrorist who wants to kill them and their families.