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Are retired military officers violating the UCMJ?

When you see some nut case birther with a military title ranting against Obama on the Internet, you will see a little “(ret.)” after their title, to indicate that they are retired. Military law demands that officers respect the country and its leaders. What about retired officers?

The Uniform Code of Military Justice (UCMJ) does not only apply to those actively serving in the armed forces, but also to “Retired members of a regular component of the armed forces who are entitled to pay.” Article 88 of the UCMJ further states:

ART. 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 is on duty or present shall be punished as a court-martial may direct.

This topic received some attention in 2006 in the context of criticism of Secretary of Defense Rumsfeld by 6 retired generals. Fred Kaplan argued in a Slate.com article, “Could Rumsfeld Court-Martial the Retired Generals?” that the answer to that question is “yes.” There is no exemption for someone who claims to be speaking as a private citizen. Limited criticism in the context of a political debate is permitted, as indicated by the Manual for Courts-Martial:

If 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.

This brings us to shocking remarks recently made by Maj. Gen. Paul Vallely (ret.) at the Surprise Tea Party in Arizona, as reported by several web sites including Raw Story that includes a video link for the appearance.

“I had a call this afternoon from Idaho, the gentleman said, ‘If I give you 250,000 Marines to go to Washington, will you lead them?’” Vallely said as the group laughed and gasped. “I said, ‘Yes, I will, I’ll surround the White House and I’ll surround the Capitol building, but it’s going to take physical presence to do things.”

I was looking for something that one could label contemptuous. Certainly the call for the resignation of the top members of the government (Obama, Biden, Reid, McConnell, Boehner and Pelosi) borders on contempt, as does his comment: Obama is “intentionally weakening and gutting our military, Pentagon and reducing the U.S. as a superpower….” Vallely wrote in an email to supporters: “I have already achieved a level of ‘no confidence’ in Obama as a leader.”

All of this said, prosecutions under Article 88 are extremely rare, and unlikely to impact Vallely, but it does point out the lack of respect he shows towards the military.

Confidence v. No Confidence

It looks like we’re on the “confidence” theme this week. I admit that I came down pretty hard on Paul Vallely in my article, “Former general confuses US with UK,”  mocking his call for a vote of “no confidence” on President Obama in the House of Representatives. Granted, I correctly noted that such a vote has no legal significance, but I did not fairly label it what it really is, a political ploy. (The idea that a vote by a majority of the Republican-controlled House would result in an Obama resignation is  ludicrous.) In this country, the political party in power governs, and the opposition tries to get them out. And those out of power in Washington today use every trick they can to make the Obama Administration look bad, and this “vote of no confidence” scheme should be viewed as what it is, politics.

One of the reasons that I wanted to back off a little on the current “no confidence” move is that it is not just something that right-wing nut jobs cooked up in their anti-Obama program. The other side tried the same gambit when it was the Bush administration in power. Turn the clock back to May of 2007 and read this from Think Progress:

Last week, Sens. Dianne Feinstein (D-CA) and Charles Schumer (D-NY) called on the Senate to hold a no-confidence vote on Attorney General Alberto Gonzales.

The White House and its conservative allies quickly derided the vote, calling it “nothing more than a meaningless political act.” This morning on Fox News Sunday, Sen. Lindsey Graham (R-SC) called it a “gotcha game.”

So what happened with that move? A resolution of no confidence was introduced, but even though  53 Senators voted to debate the issue (38 opposed), it fell shy of the 60-vote supermajority necessary to fend off a Republican filibuster. Although the “no confidence” vote was not held, Gonzalez did resign (for more on this controversial figure, check out the Wikipedia).

Folks like me on the Internet try to get good information, but we don’t govern the country, or try legal cases. If I make a mistake, the only consequence is a little hit on my credibility. When it comes to members of Congress, they have to make real decisions that affect real people, and their standard of correctness must needs be far higher than mine. When Congress needs a legal opinion, they may seek guidance from the Congressional Research Service, an arm of the Library of Congress, and that’s exactly what some did in 2007 regarding the “no confidence” question, resulting in the production of this report: “No Confidence” Votes and Other Forms of Congressional Censure of Public Officials from June of 2007.

The report concludes (in part):

Aside from obvious symbolic, political or publicity implications, there are no specific legal consequences in the passage of such a resolution, nor is there any legal significance or consequence for the Senate or the House to choose one phrase of disapprobation or condemnation over another, or to include or not to include the concept or expression of a loss of “confidence” in an official.

The report is of particular interest in its tabulation of historical resolutions of this type, going back to 1973.

Former general confuses US with UK

My heart goes out to the victims of dementia and their families. I’m not a real doctor, and I don’t make psychiatric diagnoses on the Internet, but there certainly seems to be something wrong with retired major general, Fox News military analyst Paul Vallely and frequent source at WorldNetDaily.

Vallely started having memory problems as early as 2005, regarding some probably imaginary conversations about Valerie Plame. In that instance, he could just have been lying, but no one lies when everybody knows what they are saying is false, and this is exactly what we see in a blog post last month from Vallely, on his Stand Up America blog. Plain and simple, Vallely’s plan to get Obama out of the White House is to hold a “vote of no confidence” in the US House of Representatives.

While the necessity of confidence in the executive by the UK House of Commons is a fundamental requirement of the British Constitution, we don’t do that in the United States.  He also seems to be having some delusional thoughts about the President’s birth certificate. This is an editorial comment at the Stand Up America blog, which has Vallely’s name on the masthead:

By now, even the most ardent nay-sayer of so-called ‘Birthers’ must admit, this Obama document fraud issue, and ignoring the eligibility question stinks to the high heavens. In the privacy of their own abodes they surely must admit it when they look in the mirror in the morning.

His articles attract the usual rabid birthers and usurper haters as commenters.

Vallely is confused. Poor fellow.

Read more:

Lakin’s lumps

LTC Terry Lakin and his civilian counsel Paul Jensen took their lumps at the pre-trial hearing today on charges that Lakin refused to deploy with his unit to Afghanistan because he could not be sure his orders were legal because President Obama had not proved to his satisfaction that he was eligible to be President and Commander in Chief. The military judge stated as a matter of law, that Lakin would not be allowed to offer issues of Obama’s eligibility in his defense because Lakin is obliged to follow orders anyway. The judge reminded Lakin that the authority for the military chain of command derives from the power of Congress under the Constitution. This means no school records, no birth certificate and no depositions from Hawaii Department of Health officials.

Any competent military attorney could have told LTC Lakin that this was going to happen. One continues to ask, pondering the blank and impassive Lakin, WHY?

Dwight Sullivan wrote at the CAAFlog blog:

I hear very good things about LTC Lakin’s detailed [military] defense counsel, MAJ Kemkes.  While obviously I have no way of knowing for sure, we can very safely assume that he advised LTC Lakin that there is no way his request for discovery would be successful and that he should explore available avenues to protect himself from the consequences of his deliberate decision to disobey orders on a basis that the law will not recognize as a defense.

Military attorney Phil Cave attended the proceeding and wrote a detailed report at the Military Law and Justice blog. Phil described attorney Jensen as “beaten down” following the Judge’s ruling about which Phil said:

The military judge’s findings and rulings seemed also to put a stake through the heart of LtGen McInerney’s affidavit and its relevance to the trial (by inference this would include MG Vallely and MG Curry).

Learn more:

Obama will not appear at Lakin court martial

In an order yesterday, Lt. Col. Daniel J. Driscoll investigating officer in the court martial of Lt. Col. Terry Lakin, the birther army officer who refused deployment until Obama proves his eligibility, refused to accept President Obama on Lakin’s witness list. Lakin is not going to be able to argue in his defense that the President is not eligible. Not to say “I told you so”, but I told you so. Every military legal expert who has commented on this has said Lakin has no case. Why didn’t Lakin’s attorney, Paul Jensen, tell him that too? The following list of documents was also refused:

  • Puhahau school documents
  • Punahau school records
  • Hawaii State Dept. of Health records
  • Occidental College records
  • Columbia University records
  • Harvard University records

A list of witnesses associated with the above was also denied. However, Dr. Alan Keyes was allowed as a witness, although the defense did not explain to the court the relevance of his testimony. Also unexplained but accepted was Maj. General (retired) Paul Vallely, senior military analyst for Fox News, and contributor to WorldNetDaily.

The investigating officer pointed out that President Obama did not directly give any order to LTC Lakin, and that facially proper orders must be obeyed unless carrying them out would be a criminal act. The court pointed out that the Defense arguments lacked scholarly authority (shoddy work, I would say).  He added:

The Defense … fails to assert a legal basis by which its request might be allowable under the law of political questions, whereby courts will refrain from inserting themselves in matters constituti0nally relegated to coequal branches of Government. The Defense quest to use a military justice forum to invalidate all military authority while undermining the authority of a sitting United States President certainly appears at first blush to be a nonjusticiable political question.

Daniel J. Driscoll,
Investigating Officer

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