As a military lawyer stationed at Guantanamo Bay, Diaz found himself in a quandary.
Diaz’s indignation at the government’s policies had been building since he arrived at Guantánamo. He did not doubt that there were dangerous men there. But he had come to believe that the Pentagon was misrepresenting how the detainees were treated and the threat some of them posed. As a lawyer, he found the recalcitrance of the White House indefensible. The Supreme Court had spoken. Why could’t the administration go before a judge and show why these men should be held indefinitely and without charge? “I feel like I’m on the wrong side,” he confided to a couple of the lawyers who were representing Guantánamo prisoners.
So Diaz decided to do something about it. He printed out the information about the 551 inmates and sent them in a Valentines card to Barbara Olshansky, a lawyer he had never met at the Center for Constitutional Rights.
Olshansky had no clue why someone would do this. When she received the information, she thought it was a joke. You know how those lefty lawyers are a bunch of jokesters. Laughter became suspicion, as lawyers at the center thought that they were being set up by the government. This sort of thing could happen.
Upon reflection, they notified the judge hearing their Gitmo challenges. The judge’s courtroom deputy was asked if Olshansky could send it over for safekeeping. Instead, she was told to turn it over to Justice. The Center received a visit from the FBI, to whom they turned over the information.
David Tarrell provides a compelling glimpse into the background of Diaz, whose father was convicted of capital murder, and jumps into the fray to support Diaz’s suicidal leap of conscience. Diaz did not come to the decision to act until more than 6 months had passed since the Supreme Court’s Rasul decision, holding that the Gitmo detainees were entitled to legal representation to challenge their detention in U.S. courts, and the government was still stonewalling. Diaz found himself on the wrong side and, believing that if he didn’t act, no one would, took matters into his own hands.
I would very much like to write, at this point, that Diaz is an American hero for having bucked the military, given life to the Supreme Court’s Rasul decision, and fought a government that he believed was violating the law. I would like to, but I can’t.
I don’t doubt Diaz’s claim that there was no way up the chain of command that would have altered the government’s decision to stonewall the defense lawyers seeking information about the Gitmo detainees. He had no lawful means to act to achieve the outcome he sought. Aside from his covert (and ill-conceived) plan to send the CCR lawyer a Valentines card, he was stuck. Frustration, coupled with a personal sense of morality, drove him to this act.
But Matthew Diaz was not like some corporate whistleblower. He wasn’t a defense attorney whose sole obligation was zealous defense of his client. Matthew Diaz was a Lieutenant Commander in the United States Navy. He was an officer in the military. He picked his side, and upon putting on the uniform, undertook certain bedrock obligations that are larger than his personal vision of right and wrong at any given moment.
While I find myself critical of much that has happened with our military since about 1963, and have been happy to openly criticize it at will, I do not wear a uniform. I have the right to criticize it, and I compromise no obligation by doing so. Indeed, I can argue that I fulfill my duty as an American citizen by challenging my government when I disagree with it. A soldier compromises that opportunity. A soldier knows this when he selects fatigues over a suit and tie.
The military cannot function without discipline and following orders. We are not talking about orders to commit a crime or an atrocity. We are talking about orders that, for better or worse, reflect a position being argued at the highest levels of government, and challenged in the courts of the nation. One thing a soldier, of a Jag Lt. Comdr. cannot do, is make the choice to disobey orders whenever there is personal disagreement. Worse yet, to disobey orders and thus, by the hand of a single person, make choices for the entirety of the American government.
The matter was in the courts, being fought hard by civilian lawyers. The matter was in the media, being questioned hard. These are the mechanisms, for better or worse, that are used to challenge, question and hopefully overcome wrongful governmental conduct. Was there an injustice going down at Gitmo? I wouldn’t even begin to question to that, as I have no doubt that it was very wrong. But the world is fraught with injustice, and it is through the mechanisms that society has developed that we continue the fight to right the wrongs. What cannot happen is the breakdown of our quasi-potent institutions whenever things don’t happen the way we want, or don’t happen quickly enough to suit us.
If Matthew Diaz wore anything other than a uniform, I would not hesitate to applaud his act of conscience. But once he chose Navy dress whites, the obligation that goes with the uniform trumps his right to act upon personal choices. He knew that. He chose the uniform. He violated his obligation. As wrong as our government can be, Matthew Diaz was more wrong.
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I disagree. Although it is not U.S. precedent, the Nuremburg trials established an affirmative requirement to disobey orders when those orders–even though lawful–are morally reprehensible.
Are you really comparing the internment and murder of millions of Jews, Catholics, Gypsies, Homosexuals, with Gitmo to reach the same level of moral reprehensibility?
Before I found your post I asked one of my favorite, most trusted former colleagues at the public defenders office about Diaz’s situation and, to my surprise, she (perhaps because she is married to a Marine and has spent a lot of time working military bases) made the same points you did.
Then, after I found your post, I had to reflect on my own frequent criticisms of people who cavalierly advise that violating the law isn’t a problem if you’re one of the “good guys.” Giuliani said something similar to this today when he described the definition of torture “depend[ing] on who’s doing it.”
So I probably went a little too far arguing that Diaz is a like a modern day Rosa Parks. After all, she wasn’t wearing a uniform and the fact that the information he revealed was ultimately released pursuant to a judge’s order illustrates that Diaz’s actions weren’t a last resort more than it shows “no harm, no foul” as I previously argued.
I wonder though if he didn’t see his acts as a last resort when he sealed the Valentine, thinking about his dad sold down the river by a bad lawyer and having to witness things like waterboarding and to hear the Navy argue things that the names didn’t need to be released because the detainees had other ways to obtain lawyers, while at the same time hearing his own government argue that these men, some as young as 13, weren’t entitled to lawyers while they were being deliberately held out of U.S. territory in the hopes that geography would keep their cases out of the reach of U.S. Courts.
Diaz faced up to 20 years but he ended up hgetting 6 months to think about his mistakes. I know that’s what they were, and guess that he does too, but I feel a little like an Monday morning quarterback describing them that way. here, from the safety of my new home,
My defense of him and offers to help amount to an argument for sentencing, I guess, rather than an argument about guilt. Perhaps when others, like the telecom execs and a certain ex-attorney general, are held accountable for their actions around this same time will Diaz’s six months in the brig sit a little better with me.
Reminds me of the sarcastic quote about the law, in its “magestic equality” forbidding the stealing of bread and sleeping under bridges.
But you make a good point about the military being necessarily based on following lawful orders and the law being the law. I just hope as a nation that we’re still up to making it apply to Alberto or George with the same energy that we want applied to Mr. Diaz.
I completely understand why your sympathies lie with Diaz, and agree that the argument goes much farther as mitigation in sentencing than against guilt. His motives were altruistic.
We, who roundly condemn those who argue that the ends justify the means, must be vigilant not to fall into the same trap when the ends suit our point of view. It’s wrong for them. It’s also wrong for us.
You said: I would very much like to write, at this point, that Diaz is an American hero for having bucked the military, given life to the Supreme Court’s Rasul decision, and fought a government that he believed was violating the law. I would like to, but I can’t.
I say: The belief was not just subjective. Others have confirmed the fact that this wayward administration was violating so many laws. If it wasn’t for leaks, the PEOPLE would never really know what their government is doing in their name. It’s bad enough that so many Americans are like lemmings, who continue following this administration over a cliff. Even if it was subjective, who else would know better that the government was violating the law than the one in charge of tracking abuse allegations and participating in the so-called legal processes there?
He picked his side, and upon putting on the uniform, undertook certain bedrock obligations that are larger than his personal vision of right and wrong at any given moment. There was no personal gain to be achieved. This wasn’t Diaz’s vision versus the administration’s. Per the hierarchy of laws, right and wrong should be established by referring to the Constitution, treaties, statutes, case law precedent (i.e., Rasul, Al Odah, Hamdan, and probably Al Odah again soon). The side picked by any officer is the side of the Constitution, the largest bedrock obligation. See the oath below. The Navy hires JAGs to ensure its commanders comply with the law. They’re not supposed to ignore the numerous violations being committed by this administration, but most of them do. This administration ignored all of the above sources of law and will continue ignoring them. Who’s doing greater harm to this country by ignoring bedrock obligations; that is, the law?
You said: The military cannot function without discipline and following orders. We are not talking about orders to commit a crime or an atrocity.
I say: We are talking about the continuation of abuse and numerous violations of human rights – WAR CRIMES. How would the unidentified even attempt to seek habeas relief if no one knew who they were? Do we tell the unidentified, unrepresented detainee, “the courts will order the release of your identities in another year – hang in there.”? Now we’re predicting the future? Monday morning QBs seem to have all the right answers. Maybe since we’re talking about non-white, non-christian, foreigners, it’s not such a big deal. Forget your training good officer; just do what the war criminals ask of you.
You said: We are talking about orders that, for better or worse, reflect a position being argued at the highest levels of government, and challenged in the courts of the nation. One thing a soldier, of a Jag Lt. Comdr. cannot do, is make the choice to disobey orders whenever there is personal disagreement.
I say: Were it not for a leaker’s “personal disagreement,” the American citizens, already distracted by Scott Peterson, Anna Nicole, Britney, fantasy football, NASCAR, …, would never know about warrantless wiretaps, CIA black sites, the FBI’s concerns about abuses at Guantanamo, Walter Reed…
You said: Worse yet, to disobey orders and thus, by the hand of a single person, make choices for the entirety of the American government.
What cannot happen is the breakdown of our quasi-potent institutions whenever things don’t happen the way we want, or don’t happen quickly enough to suit us.
I say: I’m not so sure Omar Khadr, or Salim Hamdan, or the other 300 plus (550 plus at the time) give a damn about breakdowns of quasi-potent institutions. The process was not happening quickly enough to suit THEM. What do you tell them? “Hang on until the 2006 election cycle, maybe we’ll have a Congress who will allow your identities to be revealed and then we’ll set things aright. Maybe someday soon a court will order your identities to be released (it’s a good thing the government didn’t appeal the AP decision – maybe the names never would have been known – would it then be okay to leak the information?) Or, my patient foreign friend, why don’t you hang in there until January 2009, maybe, just maybe s/he will treat you differently. One of those three branches might do something. Meanwhile, the truth about your treatment (and your identities) must stay secret – just continue sacrificing yourselves while we maintain the process.”
You said: If Matthew Diaz wore anything other than a uniform, I would not hesitate to applaud his act of conscience. But once he chose Navy dress whites, the obligation that goes with the uniform trumps his right to act upon personal choices. He knew that. He chose the uniform. He violated his obligation. As wrong as our government can be, Matthew Diaz was more wrong.
I say: The oaths of the enlisted and officer ranks are below. The officer’s allegiance is to the Constitution, not the commanding general, not the chimp in chief. There’s also a link to the history of the oath and a link to a comment on what’s really happening at that gulag. True, there should be accountability. But don’t base conclusions on hindsight. More importantly, these are human beings we’re talking about. Put yourself, your child, or other loved one there. Would you sacrifice their well-being for the sake of an obligation to a uniform? An obligation that is trumped by the Constitution? Hopefully, the arrogance of many in this empire will give way to simple decency.
Enlisted: I,____________, 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; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God. I swear (or affirm) that I am fully aware and fully understand the conditions under which I am enlisting.
Officer: I will support and defend the Constitution of the United States of America against all enemies foreign and domestic, that I will continue to bear true faith and allegiance to the Constitution and the country whose course it directs, and that I take this obligation freely without any mental reservation. So help me God.
http://www.airpower.au.af.mil/airchronicles/apj/apj02/win02/keskel.html
http://jurist.law.pitt.edu/forumy/2007/11/politics-at-guantanamo-former-chief.php