UCMJ and DU, is caution in posting needed?

[rebelskypirate]

To all military posters here

I am new to DU, and have read many things posted by those claiming to by active duty or activated NG/Reserves. Many of those comments are quite negative towards President Bush personally and others serving in his cabinet. For someone not in the service, no big deal, unless of course one threatens to harm him, and that is a crime. But the UCMJ(Uniform Code of Military Justice) has an article that does not allow such statements: Article 88, here is the text:

Source:http://usmilitary.about.com/od/punitivearticles/a/mcm88.htm

Start Quote:

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

Elements.

(1) That the accused was a commissioned officer of the United States armed forces;
(2) That the accused used certain words against an official or legislature named in the article;
(3) That by an act of the accused these words came to the knowledge of a person other than the accused; and
(4) That the words used were contemptuous, either in themselves or by virtue of the circumstances under which they were used.

Explanation.

The official or legislature against whom the words are used must be occupying one of the offices or be one of the legislatures named in Article 88 at the time of the offense. Neither “Congress” nor “legislature” includes its members individually. “Governor” does not include “lieutenant governor.” It is immaterial whether the words are used against the official in an official or private capacity. If not personally contemptuous, ad-verse 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.

Similarly, expressions of opinion made in a purely private conversation should not ordinarily be charged. Giving broad circulation to a written publication containing contemptuous words of the kind made punishable by this article, or the utterance of contemptuous words of this kind in the presence of military subordinates, aggravates the offense. The truth or falsity of the statements is immaterial.

Maximum punishment.

Dismissal, forfeiture of all pay and allowances, and confinement for 1 year.

NOTE: While only commissioned officers can be charged under this article, DOD Directive 1344.10- POLITICAL ACTIVITIES BY MEMBERS OF THE ARMED FORCES ON ACTIVE DUTY, extend these same requirements to all individuals on active duty. Enlisted members and warrant officers who violate these provisions can be charged under Article 92, of the UCMJ, Failure to Obey an Order or Regulation.

End Quote

It looks like to me that comments made here on DU would fall under these legal guidelines, but I am not a JAG or lawyer. I am not sure if there has been a case involving Internet speech(such as DU), any additional info would be helpful.

To Moderators/Adminstrators: Has there ever been a request or court order involving any issues like this? thanks

[MichiganVote]

1. So what's your point?

[troubleinwinter]

2. "any additional info would be helpful"

Helpful to what?

[ET Awful]

3. Hmmm, the article you reference only pertains to commissioned officers

Thus enlisted personnel (the majority of troops, this includes everyone from a private up through the highest non-commissioned officer rank, i.e. Sergeant Major of the Army) are not covered by it, nor are warrant officers.

Your little disclaimer would only apply if an order was given from a superior officer to not make such comments.

[MADem]

18. The enlisted personnel are covered by a DOD DIRECTIVE

http://usmilitary.about.com/library/milinfo/dodreg/bldodreg1344-10.htm

It addresses contemptuous speech, and the directive constitutes a direct order.

[denverbill]

4. I don't think anyone here needs to worry.

Unless they are posting using their own name and personal information.

The thing you are talking about involves officers going on record to the media and making public statements. Making anonymous statements on the internet is a lot different from making an attributable quote to a newspaper.

I wonder if anyone ever wondered about this during the Clinton administration? There were far more Clinton hating officers than Bush hating officers.

[rebelskypirate]

5. I know of one General

Hello DenverBill,

I do know of a Brigader General who was forced to retire for calling Presiden Clinton a number of names in a public forum, but unsure of others. I also know of one Major who got into trouble for comments directed against President Bush.

I would have to agree with you on the Clinton point.

As to being "anonymous" on DU or any other place on the Net, we are all too easy to find(via court orders to the ISP or DU direct), and thats why I asked if there had been any such requests made of DU.

thanks, and best wishes to you

[happyslug]

6. Please note that section only applies to COMMISSIONED OFFICERS

NCOs and enlisted ranks do NOT come under Article 88. Now the Department of Defense (DOD) has tried to expand it to include NCOs and Enlisted personal by Regulation, but Regulations can NOT be used to Expand a law. Only CONGRESS can expand a law. The Regulation Expanding this section on its face illegal.

Now the reason Congress made this law only applicable to Officer for it is a clear violation of the First Amendment (i.e. Freedom of Speech). An Officer holds his commission from Congress AND CAN RESIGN IT AT ANY TIME. Thus if an Officer wants to exercise his First Amendment rights, all he has to do is Resign and he can speak up. When he is in the Uniform of an OFFICER of the US he is speaking for Congress and as such Congress can put whatever restriction Congress wants on the people who speaks for Congress.

Enlisted personal, on the other hand, can NOT resign. So if an enlistee wants to exercise his First Amendment Rights of Free Speech he can not "Quit" and than exercise his Right to Free Speech. An Enlistee is in for the period of his enlistment. Given this legal situation of Enlistees Article 88 can NOT be made to apply to them unless the Regulation permit them to "Quit".

Remember you only give up TWO RIGHTS when you enlist in the US Military, the Right to a Jury Trial and the Right to a Grand Jury indictment. All other rights of American Citizens are retained. Now an enlistee can be subject to "Status" Crimes i.e. AWOL, Desertion, disobeying lawful order (and the rest of the UCMJ, crimes related to being in the Military "Status"). Such "Status" Crimes do not apply to Civilians but those "Status Crimes" will be upheld against an enlistee, but one "Status" of being in the Military does NOT terminate your rights to Free Speech. To expand Article 88 to Enlistees WITHOUT giving them the RIGHT to resign interferes with the Enlistee's right to Freedom of Speech.

And Congress will never give Enlistees the right to resign, the UCMJ was written when we had the Draft, thus the Wording of the UCMJ reflect the fact people will be drafted in the Military that oppose what the Military may be doing. Merely being Drafted did not end your right to Free Speech, and the same with non-drafted enlistees, merely being in the Military does NOT give up your right to Free Speech.

[happyslug]

7. Sanford vs Callan, 148 F.2d 376, 1945 U.S. App. Lexis 2456

In my belief the change to Officers only in the UMCJ from Officers and Soldiers in the Articles of War, is a reflection of Congress's Reaction to the Fifth Circuit's 1945 decision in SANFORD, v. CALLAN, 148 F.2d 376; 1945 U.S. App. LEXIS 2456. In Sanford, Private Callan had made several derogatory and slanderous comment about President Roosevelt during WWII. He was convicted under the Article of War equivalent of the UCMJ's Article 88 and sentenced to 20 years imprisonment (For the comments were made during wartime). Callan had been a Draftee and from day one had expressed his opinion of dislike for Roosevelt and spoke favorably of Hitler. This caused Callan to be Court Martial and sentenced. Being a Draftee he could not resign, but it was war time and he obeyed the called to arms by his draft board even through he was known to have this opinions before he was drafted.

In the Court Marital Callan was convicted, Callan than asked for a Writ of Habeas Corpus (Without an Attorney, he was pro se represented). In the Trial on the Habeas Corpus Petition the trial judge GRANTED the writ but the Fifth Circuit overturned the Trial Judge and the US Supreme Court denied Cert (i.e. declined to review the case). This case was troubling, in many ways if Callan had NOT been Drafted he would NOT have been Sentenced to 20 years imprisonment for he would have made the statements BUT as a Civilian not subject to any legal action under the First Amendment.

It is clear that Congress knew of Sanford vs Callan and clearly Congress wanted to restrict Article 88 to just Officers. An argument can be made that since we now have an non-draftee Army Article 88 could be made to apply to Enlistees since no one is being "Forced" to enlist. The problem is CONGRESS has not changed the law, and given that CONGRESS wrote Article 88 the way it is written and has refused to modified it implies that Article 88 as written is what Congress wants. Congress last Modified Article 88 in 2002 (when "Secretary of Homeland Security replaced "Secretary of Transportation" in the list of people one can not comment on). Given Congress had a Chance to modified it and did not do so, that implies Congress wants Article 88 to be enforced as written and NOT to expand it to enlistees. This is the best Argument against the expansion of Article 88 by Regulations. Congress sets Military Justice Not the Military, and Congress has says Article 88 only applies to Officers.

[rebelskypirate]

8. thanks for the case

To the last two posters

thanks so much for posting this, makes sense that Art 88 cannot be applied via reg(now Instruction) to enlisted members. My question does such a published order stand on its own merits under Art 92 vs being an extension of Art 88? I know there is the "lawful" part of Art 92 but know little the legal meaning of "lawful order" other than how it applies to Laws of Armed Conflict, perhaps you have another case file for this

This DOD directive is quite restrictive, and seems on the surface to not allow any partisan activity in any public forum, I will ask the ADC/JAG this question when I get a chance.

Just wondering, are you a former JAG?

PS: The Moderator posted here that there has never been any attempt by the military to ID anyone here, so thats good news, link

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=120x25964

[happyslug]

9. No I was never a JAG, but I am, an attorney,

As to your question as to Article 92, the issue is complex, first all Orders are presumed to be "lawful". It is up to the person disobeying the Order to show it was unlawful. Second, the Uniform Military Justice system is one of the fairest in the World IF YOU CAN GET TO IT. You will find yourself threaten with Article 15s, and Court Martial in situations when the case gets to a JAG officers the case will be dismissed. They are a lot of NCOs and Officers who THINK they know what Military Justice is and do not.

Given the above most people comply, but just remember you did NOT give up your Rights when you lifted up your arm and took the oath. You incurred a new status of being a Soldier but you gave up no rights (Except to be under Military justice system instead of the Civilian Justice System).

Now as to the issue is the regulation Valid? A good starting point is UNITED STATES vs NATION, JR., United States Court of Military Appeals
9 U.S.C.M.A. 724; 1958 CMA LEXIS 440; 26 C.M.R. 504. A Case from 1958. In that case Seaman Nation was convicted of disobeying a General Order issued by the Commander, United States Naval Forces, Philippines, that required a "six month" waiting period before a Sailor could marry. The Court ruled such a requirement was NOT a lawful order and dismissed the Conviction. The Court ruled the General Order for the six month period was over broad and thus illegal under the UCMJ.

Another case is UNITED STATES v. DYKES, United States Navy Court of Military Review, 6 M.J. 744; 1978 CMR LEXIS 541, I quote form the opinion:

"It has long been recognized that whether or not the issuance of a particular order is authorized is, in large measure, determined by examination of the circumstances under which that order is issued. See Winthrop, Military Law and Precedent 576 (2d ed. 1920). Of prime importance is the determination of whether or not the order in fact relates to a military duty. If it does not, the conclusion would be inescapable that the order is unlawful. See paragraph 169b, Manual, supra; United States v. Musguire, 9 U.S.C.M.A. 67, 25 C.M.R. 329 (1958).
Appellant, through counsel, asserts that the order which he violated unreasonably deprived him of a right not related to the performance of a military duty. Thus, to effectively dispose of this contention we must discern whether or not the performance of a military duty is at the core of the rationale which prompted promulgation of the order; whether or not appellant had a right either related or unrelated to the performance of that duty; and, finally, if a requirement for the performance of such a duty existed and appellant was deprived of any right, whether or not that deprivation was unreasonable.
We note at the outset that the term "military duty" encompasses not only those pursuits normally construed as martial but also all activities which are reasonably necessary to safeguard or promote the morale, discipline, and usefulness of the members of any particular command and which are directly connected with the maintenance of service good order. United States v. Martin, 1 U.S.C.M.A. 674, 5 C.M.R. 102 (1952); para. 4-28, Military Judge's Guide (DAPAM 27-9)."

The Case goes on and rules that a ban on drug paraphernalia in the berthing area of a Ship had valid Military purpose and thus a lawful Order. Given the Order was lawful having a pipe and paper for smoking marijuana was a violation of that General Order. Now Dykes lost his case, but notice the opinion of the Judge who clearly states that if the Order HAD NOT BARING ON MILITARY ACTIVITIES, it is an unlawful order. Military Activities INCLUDE "activities which are reasonably necessary to safeguard or promote the morale, discipline, and usefulness of the members of any particular command". Note how is an ENLISTEE statement that he dislike the War in Iraq interfering with "morale, discipline, and usefulness of the members of any particular command"? Given that CONGRESS has not restricted such speech how can the Defense Department do it by Reg?

Now the above is my argument for the REG being in violation of the UCMJ. Please note that pre-UCMJ cases upheld Article 62 of the Article of War (The Predecessor Statute for the UCMJ Article 88) even against enlistees, but that was based on the fact Article 62 clearly included Enlistees, while Article 88 does NOT.

On the practical side, let us remember most JAG officers will see the above and do their best to avoid the whole issue. As long as you are not advocating refusing to obey orders, or other clear violations of your status as Enlisted Personnel in the Military I do NOT see any JAG officers letting a court martial on Article 88 get to trial.

As an Civilian Attorney I not only have to tell you what I think the law is, but how best to avoid litigation. Just being Charged is enough of a problem. My Advice is if you do mention any opposition to the War in Iraq, you do NOT do it in Uniform and you make sure you do not say or imply that you are speaking for anyone other than yourself (Unless you know you are speaking for other people, for Example I believe it would be OK to say "The Members of my team all think this war is bogus", providing you know all the members of your "team". On the other hand if you say "Everyone on my base says this war is Bogus, that is to broad and getting into the impression you are talking for the base when you can not. Also never advocate any illegal activity, for example you can ask people to support withdraw from Iraq, but you can not ask your fellow enlistees to disobey orders to go to Iraq. I am using extremes here to make a point. Just because I believe Article 88 does not apply to Enlistees and the Reg issue violates the UCMJ and the First Amendment does not mean you have complete Freedom of Speech. You have the status of being an enlisted Personnel and as such must show respect to your Officers and the Command Structure. That you think the Civilian leadership are idiots does not give you the right to insult that leadership (and at the same time you have the right to say your opinion that the leadership are idiots). Calling someone an idiot is NOT disrespecting the office he holds. It is the OFFICE that has the respect not the person holding that office.

Thus to be safe try not to disrespect the office of the person you are commenting on, but also feel free to comment on that person. Just because a person is holding an office one should respect does not mean you lose your right to free speech about that person. If you go to Court Martial base don Article 88, you want to force the court to rule on the First Amendment grounds not on the Ground you are disrespecting the Command Chain.

[KBlagburn]

12. You are wrong about the "Congressional Commisions".

ONLY the president can commision officers. It is a Presidential Commision. It says it on the certificate of commision.

USAF Vet

[happyslug]

13. See the Constitution

First if only the President can Commission Officers how did we Commission Officers during the Revolution (1775-1783)? Congress existed during the Revolution, the Presidency was only created as part of the Constitution in 1787. Thus the power of Congress to Commission Officers pre-dates the Consitution while the power of the President to sign the Commission only derives from the Consitution. Thus all authority to grant that commission comes from Congress not the President.

Furthermore the US Constitution did address this problem, ALL OFFICERS MUST BE CONFIRMED BY THE US SENATE. Now today we look at this at just addressing cabinet members, Judges, and other high Administrative personnel, but the term "Officer" as used in the Constitution includes Commissioned Officers. Now another section of the Constitution says Congress may permit the President to appoint "other officers" without senate confirmation. The Constitution is silent as to the difference between "Officers" and "Other Officers".

A rule of interpreting the Constitution is where the Constitution is silent, lets look at how the First Congress under the Constitution handled the situation. The First Congress had all Commissioned, Officers no matter their rank, to be confirmed by the Senate. This was done (and continues to be done) by the Administration sending a list of Officers for the Senate to Confirm. The only time this comes up in the news is when the Senate for some reason rejects the list. The Senate rarely rejects this list but did it to the US Army right after Patton slapped the Soldier in Sicily during WWII, and did it to the US Navy at the time of the Tail hook Scandal. Both times cost officers retirement points for the rank does not count till the Senate confirms it. On the other hand when it come to NCOs, how NCOs are promoted Congress left up to the US Army and Navy to handle.

Thus we can see Commissioned Officers are authorized by Congress, Appointed by the President subject to Senate Confirmation, while NCOs are left up to the Services to promote within guidelines set by Congress.

Now under the Dick Act of 1903 the National Guard was transferred into a "dual" service, one part being part of the state Government with all of the national Guard's officers having Commissions from whatever State the Unit is in AND a "Dual" Commission from the Federal Government. I bring this up for when Congress created this system, Congress decided it no longer wanted the Senate to confirm Company Grade Offices in the National Guard so Congress limited Senate Confirmation of National Guard Officers to the ranks of Majors on up.

I bring this up for today while Commission are Issued by the President of the Untied States, if it is a "Regular" Commission it must be confirmed by the Senate (And this goes for Company grand officers such as Captains and lieutenants). On the other hand if you hold a Commission in the Reserves (including the US Army Reserve National Guard) the Commission is confirmed by the US Senate only if your rank is Major on up. Thus by the Act of Congress Company Grade Reserve Officers are treated under the law as being just higher grade NCOs.

The US Military does NOT tell you the above for it is a bit confusing, but it is the system adopted by CONGRESS and used today. The reason is CONGRESS is the source of ALL COMMISSIONS. Congress can abolish any or all Commissions if it wants to. Thus my point was CONGRESS makes someone a Commission Officer, the President is only acting as the Agent of Congress when he signs the Commission. Thus the old saying "An officer and a Gentlemen by the Grant of Congress, for no one else would be that dumb".

[JustAVet]

16. Long time lurker, first time poster...

Ah hell, screwed the pooch - didn't see that my first post had posted and posted again. My apologies!

[JustAVet]

17. Long time lurker, first time poster...

...so please be gentle! But I wanted to respond to this comment:

"NCOs and enlisted ranks do NOT come under Article 88. Now the Department of Defense (DOD) has tried to expand it to include NCOs and Enlisted personal by Regulation, but Regulations can NOT be used to Expand a law. Only CONGRESS can expand a law. The Regulation Expanding this section on its face illegal. "

I agree that a law cannot be expanded by a regulation, directive or instruction. However, the referenced directive is NOT attempting to expand Article 88, rather it stands on its own as a lawful order that encompasses the same restrictions as those in Article 88. To disobey the directive is to violate a direct order and to place oneself in danger of prosecution under Article 92.

Now, could an enlisted member claim that the directive is unlawful, i.e., an unconstitutional restriction of free speech? The argument could be made, however the courts have long held the military to a different standard when it comes to free speech. While military members do not forfeit all free speech rights, those rights are restricted in the pursuit of "good order and discipline".

[MADem]

19. Enlisted are covered by this DOD direct order, signed by Wolfie

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:

E3.3.1. Use official authority or influence to: interfere with an election, affect the course or outcome of an election, solicit votes for a particular candidate or issue, or require or solicit political contributions from others.

E3.3.2. Be a candidate for civil office in Federal, State, or local government, except as authorized in paragraph 4.2., above, of this Directive, or engage in public or organized soliciting of others to become partisan candidates for nomination or election to civil office.

E3.3.3. Participate in partisan political management, campaigns, or conventions (except as a spectator when not in uniform), or make public speeches in the course thereof.

E3.3.4. Make a contribution to another member of the Armed Forces or a civilian officer or employee of the United States for the purpose of promoting a political objective or cause, including a political campaign.

E3.3.5. Solicit or receive a contribution from another member of the Armed Forces or a civilian officer or employee of the United States for the purpose of promoting a political objective or cause, including a political campaign.

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.

E3.3.7. Serve in any official capacity or be listed as a sponsor of a partisan political club.
This is from DOD Directive 1344.10, it applies to ALL MEMBERS OF THE ARMED FORCES, Officer and Enlisted--this is excerpted from enclosure (3):
E3.3.8. Speak before a partisan political gathering, including any gathering that promotes a partisan political party, candidate, or cause.

E3.3.9. Participate in any radio, television, or other program or group discussion as an advocate for or against of a partisan political party, candidate, or cause.

E3.3.10. Conduct a political opinion survey under the auspices of a partisan political group or distribute partisan political literature.

E3.3.11. Use contemptuous words against the officeholders described in 10 U.S.C. 888 (reference (b)), or participate in activities proscribed by references (c) and (d).

E3.3.12. Perform clerical or other duties for a partisan political committee during a campaign or on an election day.

E3.3.13. Solicit or otherwise engage in fundraising activities in Federal offices or facilities, including military reservations, for a partisan political cause or candidate.

E3.3.14. March or ride in a partisan political parade.

E3.3.15. Display a large political sign, banner, or poster (as distinguished from a bumper sticker) on the top or side of a private vehicle.

E3.3.16. Participate in any organized effort to provide voters with transportation to the polls if the effort is organized by, or associated with, a partisan political party or candidate.

E3.3.17. Sell tickets for, or otherwise actively promote, political dinners and similar fundraising events.

E3.3.18. Attend partisan political events as an official representative of the Armed Forces.

[CarbonDate]

10. I'm familiar with military regulation on this issue

I am entitled to my opinion. While the regulation does not cover anonymous internet chat boards, it's clear that the regulation only pertains to me if I am overtly speaking as a member of the armed forces (i.e., in uniform, or signing my name and rank to a letter calling the President a poopy-head). The converse also holds true: I cannot *advocate* for a candidate for partisan political purposes unless I am speaking strictly as a private citizen. I can wear a button or put a bumper sticker on my car.

Honestly, I don't think my commanders care what I post anonymously on an internet chat board, just as long as I'm not passing on any classified information. I can say I'm in the Air Force, but I could be lying for all anybody here knows.

[MADem]

20. Just don't post from your DOD computer

...and you shouldn't have any trouble.

[Ernesto]

11. can the mumble jumble

This ol' vet just wants to welcome ya aboard ya pirate.

[Aristus]

14. Hmm. I heard plenty of violations of Article 88 when Bill Clinton

was elected.

I don't remember the people who uttered them being punished. :freak:

[Coastie for Truth]

15. I wasn't a JAG but there's always Article 138

In the early part of Viet Nam "they" did send people to Viet Nam for speaking out.

But after the 1968 Amendments to the UCMJ and the sudden jump in Article 138 complaints against the "command" structure-- an Article 88 charge became an invitation to an Article 138 counter charge.

Article 138 provides:

"Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall foreword the complaint to the office exercising court- martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings thereon."

Here's the real kicker - under DOD (and service) rules, the SecDef and the Service Secretary, and the IG, and a whole bunch of Congress people get copies of everything. So, the "commanding officer's" career is toast - even if he wins.

I am surprised that there have been so few Article 138 complaints in Iraq. When we had draftees and draft motivated volunteers - Article 138's were a literate form of "fragging." I had expected them over the deployment of non-armored and hillbilly armored HummVees.