Military folks -- is this true?

[mainer]

From SFTT:


"Recently, in Iraq, a certain member of the Third Infantry apparently concerned about his job performance, called for the secretary of defense to resign. The response from the Pentagon was swift. A bright Navy Chief Petty Officer, designated duty spokeswoman, sternly stated that “ ... criticism of superior officers is a breach of military rules,” and Gen. John Abizaid, head of U.S. Central Command, said that “None of us that wear this uniform are free to say anything disparaging about the secretary of defense, or the president of the United States.”

As a retired military officer, and former senior Navy leader, I was intrigued by these statements because I knew of no specific “military rule” that applied here. So, I went straight to the Uniform Code of Military Justice, the bible of “things one cannot do while in the military,” looking for a passage that might apply. Article 88 looked promising; it had all the right people named in it, but there was one major flaw: it only applied to salty-mouthed officers. For those of you who do not have a dog-eared copy of the UCMJ around the house, let me refresh your memory. Article 88 eloquently states:



“Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct."


Clearly, officers were muzzled, but what about enlisted folks?
Well, clearly we have to follow the president’s orders, but it doesn’t say we can’t say bad things about the occupant of the White House."

[mainer]

1. Here's the link:

Since I couldn't seem to go back and forth to the site without losing my post in its entirety:

http://www.sftt.org/cgi-bin/csNews/csNews.cgi?database=DefenseWatch.db&command=viewone&op=t&id=152&rnd=993.6400145735133

[lcordero]

2. also check out Article 134

http://www.cannon.af.mil/Newcomers/Legal/Justice/UCMJ.htm

[charlie]

3. Enlisted men must obey the Article 88 prohibitions as well

A DoD directive extends them to all active duty members. I posted some links in this earlier thread:

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=104&topic_id=53287&mesg_id=53287

[happyslug]

8. DOD can NOT expand Article 88

You can flush out a Stature by Regulation but you can NOT extend it. This is a FUNDAMENTAL Rule of US Law. Furthermore the UMCJ was written during a time period when people could be DRAFTED. Thus you could have people in the Military who OPPOSE the existing political leadership. Technically you could have Communists who wanted to overthrow the US Government. Since Officers can always RESIGN, any restrictions on the speech of Officers is permitted (if the Officer dislike the Political leadership he can always resign and makes his criticism public). Enlistees and draftees can NOT resign. Since enlistees can NOT resign you CAN NOT muzzle them (How else do you preserve the right of Free Speech?) Thus the expansion of article 88 is unconstitutional not only exceeding the authority granted to the DOD to issue regulations BUT as a violation of the First Amendment.

Remember when you enlist in the Military you lose two rights in the bill of rights, the right to a grand jury indictment and the right to a Jury trial. ALL OTHER RIGHTS IN THE BILL OF RIGHTS YOU RETAIN. Including the Freedom of Speech.

Now, as a Soldier (or Sailor or Airmen) they are certain things you must do such as obey LAWFUL orders. At the same time you MUST be able to file comments up the chain of command (including criticism). Commenting on the Command is NOT insubordination. Saying someone should resign in NOT insubordination as long as you obey any LAWFUL order and up-hold your immediate command structure. For Example if you told your immediate commander “If all do respect sir, you should resign”. You are within your rights under the UMCJ, you are NOT violating Article 88, 89 or 91.

As to the “General Article” Article 134, its legality has been in question since Vietnam. While I have heard of people being threaten with it cases from the Vietnam era severely restricted Article 134 (Other wise the court in question would have had to strike it down as unconstitutionally vague). I have NOT heard of any cases involving Article 134 since the end of the Vietnam War and given modern Constitutional interpretation I do NOT expect to see any.

[charlie]

9. Thank you for your thoughts

I have no opinion on the legality of the directive because I simply don't know enough about the matter. However, one of the links in the other thread shows that the military is assuming that it can reserve the option to prosecute, so I wouldn't be surprised if the directive is being used to threaten the disgruntled soldiers who spoke to the media. I guess we'll only find out if one of them has the fortitude to stand up to attempts at punishment.

[RapidCreek]

10. No it doesn't....

You are incorrect, as is the poster in the other thread. The directive to which you refer applies to political involvement. These soldiers are not involved in polotics in any way shape or form...they are involved in combat and are stating an opinion. You are comparing apples to oranges...and that don't fly in the application of law.

Aside from threats of punishment, can you supply a link to any information documenting it's implementation as it relates to the soldiers in question? I would hazard to guess you cannot.

Further, Dean G. Falvy, a graduate of Yale University and Harvard Law, is certainly qualified to remark on whether these soldiers can be prosecuted.

I posted his article a while back....I assume you read it charlie, as we had a go around about this on another thread.

http://writ.news.findlaw.com/commentary/20030619_falvy.html

Granted, the military can indicte and prosecute a soldier for anything it cares to. A civilian grand jury can indicte a grape fruit. Conviction in both instances is another matter all together.

RC

[charlie]

13. Okay, I stand corrected

I cede that you're right about 1344.10 applying only to political activities.

And no, I can't point out an instance of prosecution under 1344.10 (I can only find a single instance of a court martial under Article 88 since the implementation of the UCMJ, for that matter). Precedence and legality wasn't my point. The potential for interpretation fitting the Bush cabal's purposes was. I want to be clear that my intention was to show that there is a regulation that might be exploited by the likes of Rumsfeld to threaten or perhaps actually punish mouthy soldiers, not actually argue for its legality or rightness.

But you're right, my unqualified contention that enlisted servicemembers are vulnerable under the directive for speaking out was wrong. I'll refrain from doing that again.

[skudros]

4. As an aspiring Naval JAG officer :)

I am almost certain that they were invoking Article 88

[mainer]

5. Article 88

But Article 88 does indeed specifiy "commisioned officer." It makes it seem as if others aren't covered by #88.


"Article 88. Contempt Toward Officials.

Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he or she is on duty or present, violates this article."

[DS1]

12. Indeed

I will never forget the screams I heard on my Marine base when Clinton beat Bush I. If these rules were to apply, a good 3rd of the Senior Enlisted (they'd better be or they wised up and got the fuck out) would also be Courts-Martialed. Fair being fair, of course.

[Atlant]

17. Laws only protect Repuglicans, don't you know? (NT)

[newyawker99]

18. Hi skudros!!

Welcome to DU!! :toast:

[The Lone Liberal]

6. Yes,

If I remember correctly you operated under general orders in which you were instructed to follow the orders of the Secretary of Defense. In essence you were give direct orders regarding the orders of the Secretary of Defense and you were not to question those orders. Of course my memory is not that good on that period, blocked mostly.

[dwillison]

7. Which military service did you retire from. You don't remember

Article 34, Insubordination (covering the entire chain of command)?

[RapidCreek]

11. Stating an opinion is not insubordination

Insubordination is defined as: Disobedient to authority. None of these men disobeyed an order from one with the authority to give them.

Further, I would ask what branch of the military you served in....as article 34 of the UCMJ has nothing whatsoever to do with insubordination.

http://usmilitary.about.com/library/milinfo/ucmj/blart-34.htm

RC

[dwillison]

14. Didn't mean to imply it did. Article 34 is a catch all. Insubordination

is a totally different issue.

My point was I can't imagine a retired military officer
being unaware of these offenses.

[dwillison]

15. Make that art. 134.

[lebkuchen]

16. The Patriot Act trumps the UCMJ

"Americans may be jailed without being charged or being able to confront witnesses against them."

http://www.truthout.com/docs_02/09.09C.ap.rights.p.htm

But, ultimately, who knows under the foggy regime of the Bushies? Maybe criticizing Bushie policies is the fast-track to getting one's ass booted out of the military, as so many soldiers are hoping for but can't achieve because of stop/loss. On the other hand, the Bushies can't kick out the enlisted since Gen. Schoomaker is now parroting Gen. Shinseki's opinion that "we're going to need more troops." Besides, being stationed in Iraq is worse than a stint at Leavenworth.

http://www.nytimes.com/2003/07/30/international/worldspecial/30ARMY.html?ex=1060228800&en=c0a909fb775dfcb8&ei=5040&partner=MOREOVER

Then again, perhaps the enlisted are taking a cue from Senator Jesse Helms, who all but sanctioned a military takeover of the WH: "Mr. Clinton better watch out if he comes down here . He'd better have a bodyguard."