Sen. Webb, true conservative?

His novel about a war crimes trial suggests he'll join Dodd and Leahy's efforts to repair the constitutional vandalism wreaked by the Military Commissions Act.

Published November 17, 2006 12:37PM (EST)

Amid the miasma of ideological spin that has followed the midterm elections, James Webb -- the author, Marine Corps veteran, former Navy secretary and newly elected senator from Virginia -- has often been described as a "conservative Democrat." Although he articulated liberal positions on economic and social issues during his remarkable underdog campaign, he may indeed hold conservative views on some of the most important matters that confront the nation. He may be more truly conservative, in fact, than the Republicans in the Senate and the Bush White House -- particularly where the defense of the Constitution is at issue.

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.

The true meaning of conservatism -- to defend and uphold the Constitution, as liberals and conservatives have sworn to do for the past two centuries -- will be tested in January 2007. That is when the Senate Judiciary Committee is likely to consider a bill introduced this week by Sen. Christopher Dodd, D-Conn., titled the Effective Terrorists Prosecution Act, which would restore many of the rights and liberties abrogated by the Military Commissions Act. According to Dodd's office, his new bill would, among other things, restore habeas corpus protections to detainees, bar testimony obtained through torture, authorize due process for appeals, limit presidential authority to interpret the Geneva Conventions, and redefine the meaning of "unlawful enemy combatants."

Whether Dodd and future Senate Judiciary Committee chairman Patrick Leahy can move that restorative legislation through the Senate remains to be seen. The Military Commissions Act passed with 65 votes last September, and most of the senators who approved it, including a dozen Democrats, will be in Congress next year. But should Webb remain true to his convictions, Dodd and Leahy will at least have a tough, eloquent and credible new comrade -- "conservative" or not.

By Joe Conason

Joe Conason is the editor in chief of To find out more about Joe Conason, visit the Creators Syndicate website at

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