Reservists Say War Makes Them Lose Jobs

[imported_Aelius]

Originally posted by: going5hole
So now i'm inarticulate because you didn't understand? Sometimes, yes, the reader is the one to blame.

Especially when you disagree with them right bud?

 

[Don Vito Corleone]

Originally posted by: LunarRay
Hehehehe,
Don Vito...
One is charged under the UCMJ, no? One is prosecuted under the guidelines of the MCM, I'd think. And, when there exists a conflict I'd expect the Court to hold in favor of the UCMJ... the law applicable to the conduct of military personnel. But, I could be wrong. I'm often wrong.
I'd opine further that insulting and disdainful speech would be considered to be contemptuous speech. But, the key is that it reads 'speech' so what about writings? I don't recall a specific reference to writings .... well.. libel but, Article 32 might cover as well.. No?

Not picking at you, Don Vito, just wondering.

LR:

Okay, I think there are some disconnects here, terminology-wise:

The UCMJ is part of the MCM (basically a one-stop shop for conducting military justice, the MCM also includes the Military Rules of Evidence, the Rules of Courts-Martial, and various other procedural stuff). In this instance, the section I cited is part of both the UCMJ and the MCM. The two don't ever "conflict" to any meaningful degree, but in fact the binding interpretations of both sources used by courts come from a third source, the Military Judge's Benchbook, as well as from case law.

The MCM is a pretty amazing resource, IMO, and I love the idea that you can basically conduct an entire court-martial, soup to nuts, with this one softcover volume.

Article 32 is a procedural article of the UCMJ that requires the government to conduct a pretrial hearing (known, not surprisingly, as an Art 32 hearing) before taking a military member to a General Court-Martial (i.e., a felony-level trial). It doesn't really have any application in this situation. The adjoining Art 31 is the military's application of the 5th Amendment, and provides that military members must be given a rights advisement anytime they are being questioned by another military member about any offense of which they are suspected (in this respect we actually have broader protection than civilians get under Miranda v. Arizona).

IMO I have never said anything that comes close to contemptuous language toward the President - per the guidance I cited, an officer can legitimately criticize the President's policies, and indeed the President himself; he just can't use language that is personally (e.g., calling him an idiot) or professionally (e.g., saying he is a terrible President) contemptuous. Again, "(i)f not personally contemptuous, adverse criticism of one of the officials or legislatures named in the article in the course of a political discussion, even though emphatically expressed, may not be charged as a violation of the article."

Written "speech" would clearly qualify as contemptuous speech, if it were in fact contemptuous. Nobody has been prosecuted under Article 88 in many years, but IIRC the last high-profile Art 88 case came when a reservist AF Lt Col wrote a letter to the editor calling President Bush a liar, sometime in 2002. I believe he got an Article 15 (another UCMJ article!). The most recent widespread crackdown on Art 88 contemptuous speech came during the Clinton administration, since a lot of military officers were not fond of him.

 

[LunarRay]

Don Vito,

LR:

Okay, I think there are some disconnects here, terminology-wise:

The UCMJ is part of the MCM (basically a one-stop shop for conducting military justice, the MCM also includes the Military Rules of Evidence, the Rules of Courts-Martial, and various other procedural stuff). In this instance, the section I cited is part of both the UCMJ and the MCM. The two don't ever "conflict" to any meaningful degree, but in fact the binding interpretations of both sources used by courts come from a third source, the Military Judge's Benchbook, as well as from case law.

The MCM is a pretty amazing resource, IMO, and I love the idea that you can basically conduct an entire court-martial, soup to nuts, with this one softcover volume.

Article 32 is a procedural article of the UCMJ that requires the government to conduct a pretrial hearing (known, not surprisingly, as an Art 32 hearing) before taking a military member to a General Court-Martial (i.e., a felony-level trial). It doesn't really have any application in this situation. The adjoining Art 31 is the military's application of the 5th Amendment, and provides that military members must be given a rights advisement anytime they are being questioned by another military member about any offense of which they are suspected (in this respect we actually have broader protection than civilians get under Miranda v. Arizona).

IMO I have never said anything that comes close to contemptuous language toward the President - per the guidance I cited, an officer can legitimately criticize the President's policies, and indeed the President himself; he just can't use language that is personally (e.g., calling him an idiot) or professionally (e.g., saying he is a terrible President) contemptuous. Again, "(i)f not personally contemptuous, adverse criticism of one of the officials or legislatures named in the article in the course of a political discussion, even though emphatically expressed, may not be charged as a violation of the article."

Written "speech" would clearly qualify as contemptuous speech, if it were in fact contemptuous. Nobody has been prosecuted under Article 88 in many years, but IIRC the last high-profile Art 88 case came when a reservist AF Lt Col wrote a letter to the editor calling President Bush a liar, sometime in 2002. I believe he got an Article 15 (another UCMJ article!). The most recent widespread crackdown on Art 88 contemptuous speech came during the Clinton administration, since a lot of military officers were not fond of him.

Thanks for the clarification. Not having been a JAG Officer and when I was an Officer in the Navy I dealt mainly with Article 15 but, saw bazillions charged under the 'catch all' Article which I remembered as Article 32 and mainly to do with Vietnamish issues aside from the specifically applicable ones. But, that was in the mid - late 60's.
The only issue I continue to have is in regard to the use of the term 'Speech'. In my understanding of Law there is a difference between Verbal and Written. Although I'd agree a 'speech' can be and is 'reduced' to written form when using an internet forum. I was hoping for a Military interpretation. It has been years... many.. since I studied law and as I said earlier, I'm not at all 'up to speed' on Military Law. I suppose if I read again what you wrote above and I have, I might infer that there is no difference. Would you be so kind as to confirm that understanding. And, is that applicable in all instances?
You need not elaborate unless you rightfully conclude that I'm fairly dense and a simple yes or no would no suffice..

 

[Don Vito Corleone]

Originally posted by: LunarRay

Thanks for the clarification. Not having been a JAG Officer and when I was an Officer in the Navy I dealt mainly with Article 15 but, saw bazillions charged under the 'catch all' Article which I remembered as Article 32 and mainly to do with Vietnamish issues aside from the specifically applicable ones. But, that was in the mid - late 60's.
The only issue I continue to have is in regard to the use of the term 'Speech'. In my understanding of Law there is a difference between Verbal and Written. Although I'd agree a 'speech' can be and is 'reduced' to written form when using an internet forum. I was hoping for a Military interpretation. It has been years... many.. since I studied law and as I said earlier, I'm not at all 'up to speed' on Military Law. I suppose if I read again what you wrote above and I have, I might infer that there is no difference. Would you be so kind as to confirm that understanding. And, is that applicable in all instances?
You need not elaborate unless you rightfully conclude that I'm fairly dense and a simple yes or no would no suffice..

I gotcha. As for the "catchall" article, I think you're talking about Article 134, which basically criminalizes any behavior that works to the prejudice of good order and discipline, or which is of a nature to bring discredit upon the armed forces. Some Art 134 offenses are very, very serious (say, assault with intent to commit murder, which carries a max sentence of 20 years, or kidnapping, with a max of life w/o parole), whereas some are very minor indeed. Usually if someone commits an offense that is not criminalized under any other provision of the UCMJ (say, providing alcohol to a minor), they'll be punished either under Art 134, or for dereliction of duty under Art 92.

For Art 88 purposes, there is no difference between verbal and written "speech." From a sentencing/punishment standpoint, I think it's always an aggravator if the speech was read/heard by a large number of people, but that can happen regardless of the medium. There are some articles of the UCMJ that are clearer about this (e.g., Indecent Language, under Art 134, specifically criminalizes indecent language "orally or in writing" - I once prosecuted a guy under this article for having phone sex with his 9-YO daughter, one of many, many awful things he had done).

 

[LunarRay]

Originally posted by: DonVito

Originally posted by: LunarRay

Thanks for the clarification. Not having been a JAG Officer and when I was an Officer in the Navy I dealt mainly with Article 15 but, saw bazillions charged under the 'catch all' Article which I remembered as Article 32 and mainly to do with Vietnamish issues aside from the specifically applicable ones. But, that was in the mid - late 60's.
The only issue I continue to have is in regard to the use of the term 'Speech'. In my understanding of Law there is a difference between Verbal and Written. Although I'd agree a 'speech' can be and is 'reduced' to written form when using an internet forum. I was hoping for a Military interpretation. It has been years... many.. since I studied law and as I said earlier, I'm not at all 'up to speed' on Military Law. I suppose if I read again what you wrote above and I have, I might infer that there is no difference. Would you be so kind as to confirm that understanding. And, is that applicable in all instances?
You need not elaborate unless you rightfully conclude that I'm fairly dense and a simple yes or no would no suffice..

I gotcha. As for the "catchall" article, I think you're talking about Article 134, which basically criminalizes any behavior that works to the prejudice of good order and discipline, or which is of a nature to bring discredit upon the armed forces. Some Art 134 offenses are very, very serious (say, assault with intent to commit murder, which carries a max sentence of 20 years, or kidnapping, with a max of life w/o parole), whereas some are very minor indeed. Usually if someone commits an offense that is not criminalized under any other provision of the UCMJ (say, providing alcohol to a minor), they'll be punished either under Art 134, or for dereliction of duty under Art 92.

For Art 88 purposes, there is no difference between verbal and written "speech." From a sentencing/punishment standpoint, I think it's always an aggravator if the speech was read/heard by a large number of people, but that can happen regardless of the medium. There are some articles of the UCMJ that are clearer about this (e.g., Indecent Language, under Art 134, specifically criminalizes indecent language "orally or in writing" - I once prosecuted a guy under this article for having phone sex with his 9-YO daughter, one of many, many awful things he had done).

Ah... yes... Article 134... I remember now. I'm getting old... which is good.
My focus is or was mainly Business Law (I am not a member of any bar) and specifically Contract Law and the related Torts so I look from a different POV to what a written versus a verbal something may mean or how it would relate as in Parole evidence in a contract dispute.
Thanks for your time regarding my somewhat offtopic dilema..