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March 27, 2006

Contempt towards officials...

In the H&I Fires above, Bill notes Yankee Sailor's noting of a another Sailor who is, shall we say, *not* a fan of the current administration. Go visit the Online Magazine Formerly Known As Rob's Blog and you'll see why. Apparently the attention from the Castle and Yankee Sailor has caused a spike that Rob is (at the time of this writing) at a loss to explain.

I'm not a JAG officer, but I believe Bill correctly points to the only article of the Uniform Code of Military Justice that Chief Rob might be in violation of - the number 134, the General Article:

Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

That would be because Article 88, Contempt Towards Officials, is only applicable to Commissioned Officers.

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 Homeland Security, 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.

Note, that while stationed in Kansas, I can't talk bad about the government thereof, but I can whale the bejeebers outta Missouri, Colorado, Oklahoma, Nebraska and any other state I want to... of course, I'm retired, so I can badmouth lots of people.

Heh. Note the underlying assumption - who's going to listen to enlisted people anyway? Obviously a pre-Internet law...

A lot of people are unaware that the speech prohibition in the UCMJ is really tailored to the commissioned officer corps - and that it's all wrapped around keeping the Man on the Horse from engaging in overt political activity, and a brute force reminder of who is in charge. The civilians.

So, what would I do as Chief Rob's commander? Before I said a word to him about his website, I would do two things.

First, have the IO people look at it from an OPSEC perspective (well within my rights and duties as a commander, and covered under current regs) and second, have my JAG look at it from an ART 134 perspective. And I would avoid going over it in any detail myself, to keep myself clean as the adjudicating authority should it cross the line in the eyes of IO or JAG.

If the IO or JAG comes back with a negative response, I'm not sure I'm going to do anything about it, that would be a discussion with my JAG. But then, I've always been a wimp in that regard, throwing my rank around, just because I didn't like what someone was saying. I also never used the bully pulpit of my command to push my politics at anyone, either. On active duty, I didn't *have* a politics. 8^)

If either IO or JAG comes back with a positive response, then I'd have to consider what I was going to do about it. I'm going to ask my IT guys if there is any indication that he's posting from work on gov't assets. IO is easy. If it's minor, call him in and deal with it at a low noise level if possible. If it's major, make him clean it up, and have my IT guys tell me if he's doing it from gov't assets. I know that where I work at that can be tracked. If he is, and things are otherwise all nice and tidy, tell him to clean it up, knock it off, or else, from an OPSEC perspective. If it's bad and ugly, then I have the hammer to go ugly.

If it's clean from OPSEC, but I get a positive report from JAG, then frankly I'm probably going to talk to my boss, simply because it will end up being a political thing, and dumping political things on your bosses without warning is a Bad Idea. Note, I'm not saying run to the boss saying "What do I do? Waaaah!", it's more like go to the boss and say, "Boss, got a troop with a website that JAG and I think crosses the line - but before we go official, I wanted to bring it to your attention because it's the sort of thing that could go political and public if the troop chooses to take it that way."

If the PO is doing it from government assets, he's set himself up for failure, that isn't going to be defensible (depending on what guidance the Navy has for what you can do while afloat or deployed and all you *have* are government assets - I don't know that policy).

But I'm not sure he's prosecutable for what he's published thus far - precisely because he's not subject to Art 88, and I have no sense of whether the impact of what he is doing would trigger art 134. If he's sowing dissent in the ranks and undermining morale and good order and discipline, that's a different issue. But if he's just posting it on his blog... well, that's why we have JAG, to help us through those rocky shoals.

Damn this internet thingy, anyway! It lets just *anyone* have a voice - vice the voices I think should be heard!

Whattaya youse guys think?

Update: I trapped a lawyer today. That was fun. He was squirmy, but I nailed him. The relevant directive that covers this is Department of Defense Directive 1344.10, currently dated Dec 04. Link here. Based on my reading of this, I think Rob is okay, and frankly, I assumed as much because he's been doing this long enough for someone besides us to have noticed, anyway. That said, there is one area of the Directive that someone might trip him up.

In his defense on his blog, Rob didn't post the "prohibited activities" from Enclosure three to the Directive. He posted the stuff that was allowed - and certainly, it was supportive of his position.

There's only one bit there where I see a provision that might cause a JAG twitch.

E3.3. EXAMPLES OF PROHIBITED POLITICAL ACTIVITIES

In accordance with the statutory restrictions in 10 U.S.C. 973(b) (reference (b)) and references (g) and (h), and the policies established in section 4., above, of this Directive, a member on active duty shall not:


"E3.3.6. Allow or cause to be published partisan political articles signed or written by the member that solicits votes for or against a partisan political party, candidate, or cause."

Kinda depends on how they define a blog, doesn't it? And with all the political bloggers pushing the FEC to essentially designate blogs as 'media' and subject to 1st Amendment treatment under CFR - if you come out and say "Vote Democrat" on the blog (how that's different from a bumper sticker, which would be okay, don't ask me), you could find yourself having to defend yourself under E3.4:

E3.4. POLITICAL ACTIVITIES NOT EXPRESSLY PERMITTED OR PROHIBITED

Some activities not expressly prohibited may be contrary to the spirit and intent of section 4. of this Directive or section E3.3. of this enclosure. In determining whether an activity violates the traditional concept that Service members should not engage in partisan political activity, rules of reason and common sense shall apply. Any activity that may be viewed as associating the Department of Defense or the Department of Homeland Security, in the case of the Coast Guard, or any component of these Departments directly or indirectly with a partisan political activity shall be avoided.

I still think you're going to sail under the radar - unless someone like Daily Kos decides to make you a poster boy. That's exposure I wouldn't want.

Lastly, because it came up in the comments - about the President and SecDef having to be able to rely upon me, and how could they with me expressing those sentiments - that comment does us *all* a disservice. I am going to use stronger language here than the comment justifies, simply to make my point clear.

My oath is to the Constituiton, not the occupant of the office. The Constitution directs that I will obey the orders, etc. And I will. Just as I obeyed the orders that emanated from the Clinton White House, regardless of what I thought about the occupant. Just as I would if the White House were to be occupied by a Clinton again, regardless of what I thought of the incumbent.

I would obey the lawful orders of John Kerry, or John McCain. Or of Markos Zuniga, if he could find his way into the Oval Office.

And if I couldn't, I would resign. And if they didn't let me resign because the law allows them to refuse that, then I would obey those lawful orders until such time as I could resign.

To behave any other way is to invite chaos, to set ourselves above the Constitution, and undermine the principle of civilian rule, and set the conditions for the ruin of the generally honorable service rendered by the military to the Republic lo these many years. And if you think otherwise, I suggest you examine your assumptions closely.

And yes, that was all out-of-fashion cheesy stuff, and I believe every word of it.

Just as does the currently-serving Captain I chatted with yesterday, who pretty much believes that we went to war for oil, and that Farenheit 911 got far more right than wrong.

But he'll go back to Iraq if asked. Because his oath demands it, and the Republic is larger than the individual who occupies the figurehead position. At the same time, he would shed no tears if the President were lawfully hauled off in chains. The key component all 'round is... lawfully.

John | Permalink | Comments (49) | Observations on things Military
» The Online Magazine Formerly Known As Rob's Blog links with: An update on the whole political opinion/milbloggi