Heroes

by digby

There have been a lot of heroes today on television. The Man Called Petraeus appeared, draped in salad, to testify about the ongoing surging victory in Iraq. At nearly the same moment, President Bush (coincidentally, I’m sure) awarded the posthumous medal of Honor to a brave Navy Seal.

But there is another kind of military hero who isn’t going to be fawned over by senators and awarded medals by president Bush — the military lawyers who risked their careers and freedom to defend the constitution against the lawless actions of the Bush department in this misbegotten War on Terror. And there have been a few.

Scott Horton writes about one of them:

Matthew Diaz served his country as a staff judge advocate at Guantánamo. He watched a shameless assault on America’s Constitution and commitment to the rule of law carried out by the Bush Administration. He watched the introduction of a system of cruel torture and abuse. He watched the shaming of the nation’s uniformed services, with their proud traditions that formed the very basis of the standards of humanitarian law, now torn asunder through the lawless acts of the Executive. Matthew Diaz found himself in a precarious position—as a uniformed officer, he was bound to follow his command. As a licensed and qualified attorney, he was bound to uphold the law. And these things were indubitably at odds.
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Diaz resolved to do something about it. He knew the Supreme Court twice ruled the Guantánamo regime, which he was under orders to uphold, was unlawful. In the Hamdan decision, the Court went a step further. In powerful and extraordinary words, Justice Kennedy reminded the Administration that Common Article 3 of the Geneva Conventions was binding upon them, and that a violation could constitute a criminal act. One senior member of the Bush legal team, informed of the decision over lunch, was reported to have turned “white as a sheet” and to have immediately excused himself. For the following months, Bush Administration lawyers entered into a frenzied discussion of how to protect themselves from criminal prosecution.

One of the crimes the Administration committed was withholding from the Red Cross a list of the detainees at Guantánamo, effectively making them into secret detainees. Before the arrival of the Bush Administration, the United States had taken the axiomatic position that holding persons in secret detention for prolonged periods outside the rule of law (a practice known as “disappearing”) was not merely unlawful, but in fact a rarified “crime against humanity.” Now the United States was engaged in the active practice of this crime.

The decision to withhold the information had been taken, in defiance of law, by senior political figures in the Bush Administration. Diaz was aware of it, and he knew it was unlawful. He printed out a copy of the names and sent them to a civil rights lawyer who had requested them in federal court proceedings.

Diaz was arrested and convicted for disclosing “secrets,” which Horton points out basically defines everything from the nuclear code to directions to the bathroom in the Bush administration. He spent six months in jail and emerged bankrupt and jobless. The administration is still working to strip him of his law license. The protection of their “secrets” is the main mission of the Bush administration at this point. (And when you think about that, you have to wonder why they are being so passive about this upcoming election…)

Horton goes on to discuss the Yoo and Haynes memos and the obvious contrast between their treatment for destroying the constitution and Diaz for trying to uphold it. He concludes with this:

Lieutenant Commander Diaz reminds us of the powerful words of Justice Brandeis:

Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole of the people by its example. If the government becomes a lawbreaker, it breeds contempt for the law and invites every man to become a law unto itself. It breeds anarchy. To declare that the end justifies the means would bring terrible retribution.

In a day when the legal profession is disgraced repeatedly by the performance of lawyers in the service of their government, Matthew Diaz is emerging as a hero to many, and as a symbol that for some lawyers devotion to truth, integrity and justice still matters. Indeed, that dedication and willingness to shoulder the burden it can bring, is and will likely be seen by future generations of Americans as the higher form of patriotism.

Yes indeed. And Diaz isn’t the only military lawyer who’s been a hero in this ongoing nightmare of executive lawlessness. There was Lieutenant Commander Swift, the lawyer in the Hamdan case, who also sacrificed his career doing the right thing. And there is US Attorney Iglesias, a Naval Reserve officer and former JAG lawyer, who blew the whistle on the US Attorney firings. There are others I’m forgetting.

It’s taking nothing away from those who do brave things in battle to honor these heroes too. They all took the same oath:

I, [name], do solemnly swear, (or affirm,) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter

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