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Monday, May 15, 2006

Army "Justice": Gay=Expulsion w/ Dishonorable Discharge; Assulting Injured Troops=Slap on Wrist

In case you hadn't seen this unbelievable story about injured American soldiers being assaulted/tortured -- by other American troops, not by the enemy:

The Army has shaken up a program to heal recruits injured in basic training after soldiers and their parents said troops hurt at Fort Sill were punished with physical abuse and medical neglect.

Two soldiers in the program have died since 2004, one or possibly both of accidental overdoses of prescription drugs.

A civilian spokesman at the fort, Jon Long, said an investigation had substantiated "misbehavior" by a drill sergeant who, soldiers say, kicked a trainee with stitches in his knee. Mr. Long said the sergeant had been suspended and reassigned....  the Fort Sill spokesman[] confirmed that an investigation focused on accusations of physical and verbal abuse. He declined to discuss details because no one had been charged with a crime. But Mr. Long said the initial findings did substantiate the reports of misbehavior by the drill sergeant, who was said to have kicked the soldier and who along with another drill sergeant received "administrative disciplinary action."

Gotta love the Army's tough-on-crime approach... oh, wait, I forgot, "no one had been charged with a crime."  Interesting that if the sergeant were not (a) a sadistic SOB basically inflicting torture on vulnerable American troops, but instead were (b) a gay man who had committed no "misdeed" other than gay sex, he'd be gone with a dishonorable discharge -- not just "reassigned," "suspended," or subjected to "administrative disciplinary action."

Which is more a threat to national security: a sergeant who likes to have sex with men rather than women, or a sergeant who assaults an innocent, vulnerable American soldier -- at a time of a troop shortage, no less?  When you juxtapose the military justice system's punishment for treasonous torture and that its punishment for gayness, is there any conceivable way to defend it?

In constitutional law cases involving the military, there's often a subtext of judicial deference to the military managing its own affairs.  E.g., Korematsu v. US (1944) (upholding Japanese internment camps); Goldman v. Weinberger (1986) (upholding discipline of Orthodox Jewish pilot who wanted to wear yarmulke, contrary to headgear regulations).  I've never been a fan of those cases, but this latest incident is getting me more and more convinced: the military is no more worthy of deference than any other employer or government body; and deferring to the military when it allows egregious misconduct is more likely to harm than help our national security.

Posted by Scott on May 15, 2006 at 11:10 AM | Permalink


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Prof: I think what has stirred your thought on this was recent publicity from this case.

However the press's ignorance of military law and "Don't Ask, Don't Tell" is way off. "Don't ask, Don't tell" is not a basis under the articles of the Uniform Code of Military Justice (UCMJ) for prosecution. It would be akin to being prosecuted criminally in a civilian court for violating by-laws of a homeowner's association.

The charges against them included pandering, sodomy and "wrongfully engaging in sexual acts with another person while being filmed with the intent of broadcasting the images over the Internet for money."

For the "Don't Ask, Don't Tell" policy, the general rule is that if a commander observes a soldier performing in "acts," or if the soldier makes a "statement" to the commander, or actually attempts/does get married to another of the same sex - they are only administratively processed for a discharge (an Honorable is the type of discharge that is normally recommended by Army regulation). On top of all of that is it is all rebuttable by the soldier (merely goofing around).

The military is very cautious of not being overly aggressive on homosexuality, in fact one of the examples given in the Army Regulation is that participation by a soldier in a gay rights parade is not a problem. However wearing the uniform in any parade (outside official entry - e.g. ROTC, etc.) will get one in trouble under another general regulation.

Also - for the purpose of legal clarification and in all fairness - what makes it prosecutable is simply their status - servicmembers. By agreeing to serve and enjoy the benefits they have to follow the rules. If they want to be porn stars - then they can - they just can't be members of the military. Servicmemembers aren't alone in their "status" -lawyers have certain ethical restraints on their speech during a trial, judges have even more concerns, law enforcement, etc. etc. Being a soldier/airman/marine/etc. is not a right.

The military justice system is unique in that it's main goal is to "preserve good order and discipline" in the ranks - thus you don't want a commander having to balance putting an immature kid in a foxhole with a gun with someone else that he'll be going balistic over - rather than him focusing on the mission. We as a country haven't evolved that far yet. At the end of the day, you want your servicemembers focusing on the "mission," winning the battle and returning home. You can only mold an 18 year (who come from all walks of life) so fast to take on responsibilities that most of us have and will never have to shoulder.

The answer is one that is not possible of course - we will have to have a madatory conscription of older, mature adults who meet the satisfactory tests of poltical correctness, sensitivity, etc. - and still possess the ability to pull the trigger when they need to.

Being homosexual and in the Armed Services isn't against the law or the regulations, but publicly (and in this case, for profit) doing/exhibiting as much is.

This isn't about being a manager at Walmart that may have intolerant employees - this is about giving a Commander the tools to lead/manage young kids into life threatening situations. Remember, we aren't that far removed from the Ozzie and Harriet days of separate beds. Progress is slow.

Basic training in the '60s might have a DS knock out a few teeth of trainee - today they hand out "stress cards" to trainees so they know when to request a "time out."

Posted by: Deuce the Lawlinebacker | May 15, 2006 9:36:35 PM

Prof Moss.

First off, I'm a law student who used to be a legal officer at fairly large command (the job is generally given to a junior officer as a collateral duty), so I'm not completely ignorant of how these types of situations are handled.

While kicking people out of the military for being gay might be a bad thing, the way this investigation is being handled is completely correct per the MCM and JAGMAN (at least on the facts I've managed to cobble together). I think the disconnect is in the use of the term "adminstrative." In the military a commanding officer can (and usually does) punish a servicemember in these sort of administrative proceedings with 45 days of confinement, 45 days of "extra duty" (think making big rocks into little rocks), reduction in pay grade, and the forfieture of a half month's pay for two months. This sentence is delivered without the annoyance of lawyers, rules of evidence, or a trial.

All told in this case if the SGT is found guilty by his CO he's going to have 1) lost a few grand, 2) make about 400 a month less for the rest of his time in the military 3) get demoted, 4) never get promoted again and 5)have to disclose the punishment on every job application he ever fills out.

I guess my point is - what's the going rate in a local courthouse for simple assault? How about when the public defender pleads it out before trial? I'm guessing the SGT would rather take his chances in a civilian court.

Also, when I dicharged individuals for homosexuality they recieved a "general" discharge, not a dishonorable, so I'm not sure what the problem is. Of course it's discriminatory, but take that up with Congress, SecDef, and POTUS, not the guys carrying out the policy who are forbidden by Article 88 from questioning it.

Posted by: anon | May 15, 2006 2:18:14 PM

Mike, There is nothing procedurally incorrect with suspending someone (with pay) pending the results of an investigation. Indeed, even someone facing a court martial for, say, murder, will still receive his pay. I don't think they have a property interest in actually acting as a Sgt.. At some point he will, indeed, have the opportunity to cross-examine witnesses.

Posted by: anon | May 15, 2006 1:41:24 PM

o you know believe that procedural protections should apply to Drill Sgts. accused of abuse?

The Drill Sgt. had been suspended and reassigned pending an investigation. The Drill Sgt., as you noted in the article, was said to have kicked a trainee. Should the Army discharge soldiers based on accusations that have not been tested by, say, some method of truth-seeking such as cross-examination?

Posted by: Mike | May 15, 2006 1:33:36 PM

I read this statement somewhere saying "army gave me medal of honor for saving a man and dishonarable discharge for loving one". I think we should be like britain were gays are allowed in army. There should not be any discrimination as specially when army is hurting on its recruiting numbers.

Posted by: Vikas Gaddu | May 15, 2006 1:31:05 PM

First of all, the CAAF is not part of the military, yet binds all military courts. While Marcum itself didn’t do much for the petitioner, who was, amongst other things charged with forcible sodomy, it did provide the lower courts with a balancing test for dealing with sodomy issues. The result has been that convening authorities have been very reluctant to bring changes in cases that could generate negative precedents that would further constrain the ability of officers to discipline men. Effectively, therefore, nobody will be charged with sodomy unless there was some actual breakdown of discipline – or “sodomy plus.”

(It is an “Article I” Court. Its judges are appointed by the president, and confirmed by congress. They serve for a term of years. They are civilians and not subject to military discipline. It hears appeals from the three service courts of appeals, and may be appealed directly to the Supreme Court via a petition for cert. It has various other powers, not relevant here, with regard to habeas petitions and the like.)

Second, it is the job of any agency charged with enforcing any statute to defend its constitutionality in court. Indeed, prior-to-Lawrence, most courts didn’t think that there was a constitutional right to consensual sodomy. Marcum was charged and tried before Lawrence. The service court of appeals opinion was in 2002 – before Lawrence. There is nothing wrong with taking the position that a law, whose constitutionality has never been successfully challenged, is constitutional as applied. Indeed, in the case of Marcum itself, it seems quite reasonable, as the convening authority initially thought that the he had done a number of things that are still bad post-Lawrence.

Finally, the hand-wringing has nothing to do with the CAAF itself, but rather is internal to the military regrading the circumstances under which soldiers charged with sodomy (without the plus) should be charged, as there is a very real possibility that Marcum will be extended further, and there will be resulting bright-line tests that could actually impede military discipline. For example, it is quite foreseeable, that a court could conclude that a solider simply may not be discharged for any form of consensual sexual activity.

Oh, and for what it’s worth, I am not in the military, and I don’t like torture.

Posted by: anon | May 15, 2006 12:46:58 PM

Also, it's not true that, as you assert, "Marcum provides that at least some homosexual conduct cannot result in a discharge."

Marcum applied Lawrence as narrowly as it could:

(a) It expressly held that some sodomy still can be banned, based on a multi-factor test that included several frequently present factors -- e.g., sex is more inappropriate, and more subject to Article 125 prosecution, when the individuals have different ranks, "even in the absence of a command or supervisory relationship."

(b) It never actually conceded that Lawrence had any impact on military rules like Article 125, instead (i) saying the court "need not decide" such questions and (ii) noting that the military does not have to grant servicemembers certain constitutional rights ("[C]onstitutional rights may apply differently to members of the armed forces than they do to civilians.... In light of the military mission, it is clear that servicemembers, as a general matter, do not share the same autonomy as civilians.")

Posted by: Scott Moss | May 15, 2006 12:30:02 PM

You know more about Marcum than I do, and no, I'm not a military law expert -- just a con law guy who has an opinion about some con law cases involving the military.

Regardless, nothing you said changes my basic point or the fact that Marcum shows (rather than disproves) the fact that military is continuing to try to treat being gay as more of a crime than sadism toward American soldiers.

While I stand corrected on the nuances of Marcum, the basic points all remain:

(1) In the Marcum briefing, the military argued for its authority to impose a prison term for gay sex.

(2) In the Marcum decision, the court noted that it was upholding the basic criminal ban on sodomy: "Article 125 forbids sodomy whether it is consensual or forcible, heterosexual or homosexual, public or private"; and "we hold that Article 125, UCMJ, is constitutional as applied to Appellant".

You are correct that the court noted case-specific reasons it was upholding Article 125 as applied to Mr. Marcum. But that isn't hand-wringing; that's an effort to justify and retain Article 125 after Lawrence pretty much undercut any serious claim that Article 125 is constitutional.

Posted by: Scott Moss | May 15, 2006 12:11:30 PM

No. United States v. Marcum, 60 M.J. 198, 206 (C.A.A.F. 2004) is no longer pending. Considering it is probably one of the most significant pieces of military jurisprudence in the past 5 years, I was under the impression that you were commenting on it. You don’t need to have read the briefs to know that it happened. It was pretty big news, and how to apply Marcum continues to be a big issue.

Anyway, since you didn't read it (or even know what court it came from, and why it is binding), you will see that it is a Marcum is a decision from the Court of Appeals for the Armed Forces which essentially holds that in the post-Lawrence world, soldiers cannot be disciplined (at least in terms of proceedings that court be appealed to the CAAF), for merely being gay, but the service courts must apply a balancing test to determine whether their conduct actually interfered with military discipline. The decision can be found here http://www.armfor.uscourts.gov/opinions/2004Term/02-0944.htm (Since you obviously didn’t read it.) The hand-wringing comes about because there is a question of if, and to what extent, the envelope should be pushed, and whether Marcum should be codified or not. (There are arguments on all sides, which I don't think you care about.) Whatever the case, nobody in a position to be a convening authority wants to be the one that causes precedent that prevents another form of behavior from being prohibited in the military, and therefore, all reported courts maritals post-Marcum have at least some element of non-private sexual conduct in them (e.g. having sex with people you command, or having sex in the wrong place, etc.)

But, whatever the case, Marcum provides that at least some homosexual conduct cannot result in a discharge. (Also, I think that you are confusing a bad-conduct discharge with a dishonorable discharge.)

Look, I know that you are upset over torture. But there is a difference between declining to prosecute someone – which doesn’t raise constitutional issues – and prosecuting someone for actually being gay (which isn’t happening.)

Posted by: anon | May 15, 2006 11:57:49 AM

"the services, post-Marcum have engaged in considerable hand-wringing"

Hand-wringing? In the currently pending federal appellate case yo're mentioning (Marcum), the military has been citing the doctrine of judicial deference to the military -- and the shibboleth of "national security" -- in order to argue that the court should uphold its criminal conviction of Mr. Marcum for the crime of acting gay.

I admit to not being all that familiar with the Marcum case; I know it, but I can't pretend I've read every filing or am up on every detail. So I'll stand corrected if I'm wrong. But when if some in the military are engaged in hand-wringing, the Marcum case seems to illustrate quite vividly that the military's official position remains: gay=crime; torture=not crime.

Posted by: Scott Moss | May 15, 2006 11:37:54 AM

I think you need to provide more details on the Army’s post-Marcum positions of the services. It is all well and good to go off on an anti-military polemic, but the services, post-Marcum have engaged in considerable hand-wringing over what to do about homosexuals who now have some protection under Lawrence. (Since you are a professor that comments on military law, I assume that yo read Marcum, and I won’t bother to get you the cite – or the cites from any of the following service court of appeals opinions — unless you want it.)

Posted by: anon | May 15, 2006 11:20:09 AM

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