RAGGED THOTS

I will be directing my attention to the back benches. I'll be watching Jim Webb.

With his stunning upset of George Allen, the heavily favored Republican incumbent, the newly elected Democratic senator from Virginia arrives as the most exotic bird in the Washington aviary.

Unlike most modern politicians, Webb hasn't spent his entire adult life running, or plotting to run, for political office. He is a man of unimpeachable physical courage and battlefield heroism, having been awarded the Navy Cross, the Silver Star and two Purple Hearts for his service as a Marine in Vietnam.

As the author of six novels, most of them bestsellers and all of them bristling with interesting ideas, he enters the Senate with a record of creative and intellectual accomplishment not seen there since the death of Daniel Patrick Moynihan.

And best of all, his election last Tuesday makes him the most deeply conservative national Democrat since Grover Cleveland.

Mr. Webb, meet Ms. Pelosi.

If Webb's own writing indicates his priorities, then he can be expected to speak up loudly and eloquently next year when his Democratic colleagues seek to repair the constitutional vandalism wreaked by passage of the Military Commissions Act in September. Like the military officers who tried and failed to preserve habeas corpus, due process and the Geneva Conventions from the zealous authoritarians of the Bush administration, Webb believes strongly in upholding those protections and feels that the excesses of the "war on terror" have damaged the honor of the U.S. military.

During the final days of his Virginia campaign, Webb's Republican adversaries attempted to smear him as a sexual deviant by using carefully selected passages from his novels. Of course they ignored the real meaning of his written works (no doubt because it was well beyond the comprehension of desperate buffoons like George Allen and his campaign manager, Dick Wadhams). But it is worth noting that years before 9/11 and the invasion of Iraq, Webb examined the same kind of moral risk we now face when he wrote "The Emperor's General," his 1999 historical novel about the prosecution and hanging of a top Japanese officer by Gen. Douglas MacArthur in the aftermath of World War II.

"The Emperor's General" is a dark tale about the corruption of MacArthur and of the book's narrator, a fictional aide to the legendary American general named Capt. Jay Marsh, who learns that winning wealth and power requires the sacrifice of justice, integrity and love. As he elucidates those sweeping themes, Webb delves into the details of the war-crimes trial of Gen. Tomoyuki Yamashita, who commanded the Japanese forces in the Philippines and was eventually hanged for atrocities committed in Nanking and Manila. But Webb believes that the Japanese general was a scapegoat executed to protect Emperor Hirohito. He is unsparing in his description of how MacArthur framed Yamashita -- or at the very least deprived him of a fair trial -- through the bureaucratic instrument of a "military commission."

Some of the most telling passages occur in an exchange between Marsh and Yamashita's lawyer, Witherspoon, whose rebuke of the military commission as "a sham" echoes into the present:

"We're Americans, Captain. We're supposedly bringing an accused man into the American system of justice. This is a capital case. Yamashita's life is at stake. I know a lot of people died in the war, and life was cheap, but the war is over. Tell MacArthur if he wants to kill Yamashita, why hide behind us? Why doesn't he just come down here and shoot him in the fucking head?

"You're not a lawyer, MacArthur's not a lawyer, and this isn't a court! He's convened a military commission! [italics in original] ... It's his own little creation ... I don't even have a military judge to object to on points of law, like I would in a regular court-martial, for Christ's sake! Do you think any of them [the five generals serving on the commission] are even going to understand the rules of evidence? Admissibility? Relevance? Probity? And MacArthur is the sole reviewing authority for their actions! ... He's waived traditional rules of evidence ...

"They [the prosecutors] know as well as I do that it's not going to matter! Do you realize what this trial -- if you can call it a trial -- this illegal, judgeless commission is going to look like? It's going to be nothing but a public circus!"

At the end of this tirade, Marsh recalls, "Witherspoon had now stunned me into silence." Now this fictional passage doesn't necessarily reflect Webb's view of the present circumstances, although he spoke out against the Bush administration's usurpation of constitutional rights during his campaign. It is important to point out as well that the Yamashita case is of more than academic or historical interest. In 1946, the U.S. Supreme Court refused Yamashita's petition for a writ of habeas corpus to overturn his conviction, but the dissents by Justices Wiley Rutledge and Frank Murphy have outlived the majority opinion.

"I cannot believe in the face of this record that the petitioner has had the fair trial our Constitution and laws command," Rutledge wrote.

Justice John Paul Stevens, who clerked for Rutledge in 1948 and 1949, cited that dissent extensively when he wrote his blistering majority opinion in Hamdan v. Rumsfeld last summer, overturning the Bush plan to try terrorist suspects before military commissions. In that opinion, Stevens referred to the Yamashita prosecution as "the most notorious exception" to the principle that military trials of enemies must afford them the same rights as American soldiers had.

# posted by Robert A. George @ 6:00 PM