Reserve Air Force Officer Hartmann was brought in not because the combined services JAG officers were too few, or unschooled, or busy with other matters. He was brought in because they were unwilling blithely to ignore the law and traditions of their services in fealty to a single political party. They quietly and professionally rebelled from those demands, within the best traditions of their services, a step not taken lightly or without knowledge of its potential consequences.

JAG officers take seriously their services’ obligation to obey the commands of civilian government, regardless of which party from time to time has control over it. But without the law, including the UCMJ, they’re just mercenaries for hire at a tuppence wage compared to their former peers at Blackwater. They take their obligations seriously because they represent people who face death and injury traveling to work every day, who must be able coldly but reservedly to send men and women to their deaths on short notice because their country’s interests demand it.

Corporate lawyer Mr. Hartmann marches to a different drumbeat, that of money, power and the conflation of business and government that generates it. In that world, law lowers profits, except when it can be used to attack an enemy. How fitting that this refreshing resistance to partisan political gamesmanship places Mr. Hartmann at odds with professional service personnel.

I haven’t the information to know who Mr. Berrigan’s clients might have been, nor do I know the specific rules governing the return of prosecution evidence, communications or draft charges. bmaz or lhp or someone else should chime in here.

But Berrigan certainly had obligations to defendants whose information he was given. He didn’t pick up that information off the street or from prosecution counsel in the bar. He acquired it in service to the defense. He would have been obligated, ie, not to disclose that information and to use it and his best abilities to argue in their favor.

That he immediately advised the prosecution he had acquired this information and promptly sought advice from his governing bar about his obligation to return it, if any, speaks volumes. Even if ultimately proven wrong, he did the right thing at the right time. Something one could rarely say about any lawyer working for George Bush. Bush, of course, immediately sought advice from his DOJ lawyers about whether his verschaerfte Vernehmungen were legal. Except in his case, he told them what to say. A different use of the law entirely.

The state secrets side of the showTrials is going to have a new crimp from the inadvertency factor behind the email; maybe defense needs to examine the still sealed relevancy of the evidentiary issue of accidentality from alHaramain, the wiretap without warrant case.

You note:

In the military legal world, there isn’t the professional and social separation that’s typical of prosecutors and defense counsel in the civilian world. It’s a bit more like English barristers in that a JAG could be prosecuting one case and later defending another. They also report to a common chain of command.

Not exactly so. One has to look closely at the ”rating chain”, i.e., who writes the individual lawyer’s evaluation reports. In the ordinary case, the prosecution lawyers work for the Staff Judge Advocate, the CG’s chief legal advisor. Their evaluations go in a chain to the SJA. OTOH, defense counsel work for what used to be called the ”Trial Defense Service”, which has a separate rating chain and chain of command running back to the head of TRial Defense Service back at Main JAG in DC. Defense counsel, ordinarily, are therefore not subject to any pressure – real or imagined – from the local commander or the SJA. Unlike the prosecutors, who work for the local commander through the SJA. Judges, too, are an entirely different chain, also separate from any command or rating by the local commander or the SJA.

While individual lawyers (particularly when they are junior) will often spend part of a tour prosecuting and part defending, at any particular time all their work is either prosecuting or defending.

I’d suggest its a little more like a small-town bar association, where everyone knows everyone and they all fight with each other in a relatively-collegial manner, changing sides as the needs/objectives of their clients dictate.

The point of all of which is creating an environment and structure where this takes place:

That said, there are rules that define their responsibilities when fulfilling each role. As quoted in EW’s piece, one of them prohibits those senior in the chain of command from exercising undue influence over prosecution or defense counsel’s work. In effect, it prohibits putting a thumb on the scale of justice.

You get it a little wrong when you say:

Hartmann was brought in because he’s outside the normal chain of command and not beholden to it or its traditions for his career, money or future.

It’s not the chain of command he was outside of. Rather, it was the trial side of the JAG community as a whole that he was outside of. And, he was brought in for precisely that purpose – so he could be Dick’s minion carrying the Torture Corps plan into effect. This, of course, was correct, too.

In practice, he worked for its political heads, part of Cheney’s shadow government. Even who Hartmann technically worked for and when is fuzzy, something not often seen in an organization with bright line command structures.

The fuzziness of the organizational chart is a hallmark of a Cheney operation – both in this dimension and not in it, at the same time. Just like his Fourth Branch concept, and giving orders which must be obeyed, in the absence of any authority to do so.