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Wrestling with Legal and Illegal Orders in the Military in the Months Ahead

The Orders Project website is here along with a Sourcebook.

18 U.S.C. § 1385—Posse Comitatus Act.

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

10 U.S.C. § 252—(Insurrection Act) Use of militia and armed forces to enforce Federal authority.

A local paper has this,

Law enforcement officials and researchers caution that the registries play a limited role in preventing child sexual abuse and stress that most perpetrators are known to the child. The U.S. Department of Justice, which oversees the National Sex Offender Public Website, estimates that only about 10 percent of perpetrators of child sexual abuse are strangers to the child. The Justice Department estimates 60 percent of perpetrators are known to the child but are not family members but rather family friends, babysitters, child care providers and others, and 30 percent of child victims are abused by family members. Nearly a quarter of the abusers are under the age of 18, the department estimates.

In the current political climate, there’s lot of discussion about retirees being prosecuted for violating Article 88, UCMJ. Should that happen–an unlikely event we all hope, there appear to be at least three defenses if the alleged subject of the disrespect is the commander-in-chief.

1. The First Amendment. Yes, I know the courts give deference to regulations limiting a servicemembers right to free speech; but there could be exceptions.
2. There are two potential affirmative defenses; one is creative the other is grounded in military caselaw.

In United States v. Brickey,

[The court] granted review out of concern for the conduct of trial counsel in withholding from the defense certain information impacting upon both the credibility and the competence of a key prosecution witness to the offenses charged. After careful examination of the record and full consideration of the well-argued positions of the parties, we conclude that it was improper for trial counsel not to divulge this information and that the failure of trial counsel to bring this information to the attention of opposing counsel prejudiced appellant’s defense. Reversal of the convictions is therefore required.

United States v. Brickey, 16 M.J. 258 259 (C.M.A. 1983).

Army Times reports,

In the next two weeks, Army senior leaders expect to distribute a new policy governing how the absent without leave status is applied to a soldier who doesn’t report for duty, according to Army Chief of Staff James McConville.

I think not.

Whoever, being an officer of the Army or Navy, or other person in the civil, military, or naval service of the United States, orders, brings, keeps, or has under his authority or control any troops or armed men at any place where a general or special election is held, unless such force be necessary to repel armed enemies of the United States, shall be fined under this title or imprisoned not more than five years, or both; and be disqualified from holding any office of honor, profit, or trust under the United States.

18 U.S.C 592.

Please vote, but, Military Times notes,

Two Army Reserve soldiers who appeared in uniform during the Democratic National Convention in August will not be disciplined for politicking in uniform, but their supervisor will.

On Thursday, officials said they had determined the two soldiers were not at fault for the mistake.

Para. 99 (Article 134, Extramarital sexual conduct) is now with us and extends the UCMJ further into morals offenses.

b. Elements.

(1) That the accused wrongfully engaged in extramarital conduct as described in subparagraph c.(2) with a certain person;

Navy Times tells us that “A Florida-based U.S. Navy command master chief was relieved from his leadership position at Naval Ordnance Test Unit last month, according to officials.”

While it appears, the case is proceeding within the state legal system, there’s a possibility it becomes a military justice issue (and certainly an adverse administrative issue).

The allegations seem to cover assault, theft, resisting arrest.