I'm as pleased as anybody that the gross Constitutional whackery of Military Tribunals is being confronted. But I cannot support a whole-hog trend towards praising military lawyers (JAGs) or the military justice system. In the current confrontation - with one exception that I will discuss below - JAGs confronting the Commission's minions (and even other JAGs) is essentially a fight between the orcs of Mordor and the orcs of Isengard.

This stems from A) the essential nature of the military justice system and B) the dangerous gambit that the Bush administration has played. In re (A), the military justice system is in its very core a lethal Constitutional affront: it is not adversarial and independent; indeed, how could true and actual Constitutional justicial process (with its unpredictable and open-ended outcomes) be given play in a system (the military) that by its own true nature must be hierarchical and is wholly given to controlling outcomes and ensuring that those outcomes are in its own favor? Faced with a citizenry so wholly protected by Constitutional justicial protections as no other citizenry in history had ever been, the American military had to wait until Stalin's era for the solution to the problem of keeping order without risking adverse outcomes: once you own all the players, you can piously issue all the 'guarantees' you want. And so even in its current much-touted Uniform Code of Military Justice, the military has simply been running the Stalinist playbook. So far, though not without muted perplexity, the system has been allowed the same legitimacy that the Supreme Court and Congress once gave to slavery. Thus, no attorney who claims to practice authentically in this system can really be encouraged in that pious belief.

In re (B), after 9/11 the Bush administration took this system - that had been successfully churning along for half a century - and decided to (i) take its dynamics to the next level of intensity and (ii) deploy this intensified racket in a forum guaranteed to invite far more intense pressure for scrutiny. Heretofore, the military justice system had been quietly thriving under its rock, in the moist darkness of public attention and nurturantly shaded as well by patriotism, public trust in uniforms, and the cachet of waging noble 'war'. Thus, the Bush plan threatened to destroy the whole racket by over-exposing it. Hence the unease among the long-term, high-ranking military lawyers (in this regard, we have to ask if the overnight collapse of the most seniior - 2 star - JAGs' opposition to the Military Commissions Act was the result of their each being promised the award of a third star, as - marvelously - has just recently been announced).

The exception? It could very well be that there are indeed now some younger or lower-ranking military attorneys who are standing up and doing the right thing against the Commissions and their pomps and all their works. Upon them be peace and success. And even upon senior-rankers whose umbrage at being institutionally dissed may have led them to blow some whistles. I praise and support all the military attorneys who are risking their jobs and careers to do the right thing.

But it has to be remembered: this military justice system is toxic to Constitutional principle and praxis. No attorney can serve it without - willy or nilly - fatally compromising professional integrity. And given the spread of this system and its ethos into the civilian legal sphere, Constitutional praxis and the rule of law will be lethally weakened. As has become increasingly clear over the past several years.