First Amendment Right…or Undue Command Influence?

20th

First Amendment Right…or Undue Command Influence?

September 2012

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

This is what the First Amendment states. At the root of things the only way for the First Amendment to be “violated” is for the Congress to pass a law that abridges one of these rights.

So where does the recent discussion trend of General Dempsey’s commentary (or lack thereof) on political organizations and activities by veterans fit? Is he seeking to restrict free speech? Or is he exercising his own freedom?

How does the current problems with “The Innocence of Muslims” tie in? Mentor and friend David Kaiser writes that “[An]other American trend is now forty years old, and relates to our changing attitude towards free speech. I remain totally opposed to any restrictions on free speech, include laws against hate speech, but the time has come to face a necessary truth: free speech has to be exercised responsibly to work. Beginning in the 1960s the idea has grown that the purpose of speech is to be outrageous, and that the more outrageous speech might be, the more protection–if not celebration–it deserves. Free speech that, for instance, points out abuses by our own government or calls attention to real dangers overseas has enormous value, but free speech that simply insults millions of Muslims does not.”

I’d been thinking this idea but as usual Dr. Kaiser is better able to explain it than I.

So, as I see it, when General Dempsey said “it’s not helpful to me” he expressed that speech should have some constraints. Others disagree. Which they are able to do because of the First Amendment. However, commanders have another problem that transcends the complaints of the chattering masses.

Let’s start with a clear statement – sexual assault is bad. It’s illegal, it’s immoral, its counter to every value our government of the people, our culture, and our modernity stand for. It’s also prevalent in the world and has been and will remain so.

What happens when a well-meaning or intended comment comes from leadership? Take for example Marine Commandant General Amos’ statements on sexual assault. In a world tour of Marin bases the general has had some tough talk.

Michael Doyle of McClatchy Newpapers writes:

“Amos used his tour to stress his own strong feelings about the 348 reported sexual assaults in the Marine Corps last year. In a roughly 75-minute talk intended for every Marine non-commissioned officer and officer, the career aviator demanded tougher punishment for those accused of sexual misconduct.

“Why have we become so soft?” Amos asked in a speech April 19 at Parris Island.

He further described himself as “very, very disappointed” in court-martial boards that don’t expel those who misbehave sexually, and he denounced as “bullshit” claims that many sexual assault allegations amount to second thoughts from individuals who initially consented.

“I know fact from fiction,” Amos declared, a transcript of his April 19 speech shows. “The fact of the matter is 80 percent of those are legitimate sexual assaults.”

“My lawyers don’t want me to talk about this, but I’m going to anyway,” he said May 23 at California’s Camp Pendleton, according to a defense legal filing. “The defense lawyers love when I talk about this, because then they can throw me under the bus later on and complain about unlawful command influence.”

These and other comments have led to 20 charges of unlawful command influence by the Commandant in Marine sexual assault cases. All because the Commandant thought he was talking tough to Marines.

This is where I believe URR and others were concerned about the intent and import of the statement made by General Dempsey regarding veteran politics. By merely weighing in he inserted command influence, whether he liked it or not. Once he weighed in he had an opportunity to show how his own ideas of restrained free speech would work when Admiral Nathman and 40 some other former servicemembers stood on the stage at the Democratic National Convention. The Chairman’s silence has provided other potential lenses to view his original comments.

Some see his actions as toadying to the President and taking a clear partisan stance. Veterans for Democrats = good. Veterans against Democrats = bad. One commenter even went so far as to press the idea that the Chairman is a Hitlerian lackey who would take an oath to serve and defend the President.

Now, I don’t subscribe to that idea. I firmly believe that if given an illegal order, the Chairman would sooner resign than take an oath to an individual, or choose to violate the Constitution. However, I think there may be a greater problem here and it falls to the concept of careerism.

Rather than political I believe that the Chairman may have fallen for the old “that which interests my boss, fascinates me” canard. Same thing happened to the Commandant.

It’s a great rubric for simple minds – and I do not think that General Dempsey or General Amos are simpleminded men.

But I do think the Chairman saw his boss getting pummeled and bothered by criticism. And the Chairman should have a personal relationship with his boss. The problem is that when the Chairman made his comments he was speaking from a personal level and forgot that he was commanding and that by making the comment it could be seen as undue command influence. Just like the Commandant. Or Admiral Mullen with his comments at the end of DADT. It is one thing to lead. It is another to lead in such a way that you illegally, or incorrectly, abrogate someone’s rights under the very Constitution we have sworn to protect and defend.

Finally, there’s a second point to the piece that Dr. Kaiser writes. Provocative speech, while free or allowable, should not be the only way in which the discourse occurs. And all too often blogs and commentators fall victim to provocation over prose. We can, and should, hold leaders, ourselves, and our subordinates accountable for their words and deeds. But we should also strive to do so in as reasoned and rational a manner as possible. It’s something I have struggled with for years and will continue to do so. Sure, our tempers can get away from us. But when we speak on someone else’s podium we also have an obligation to maintain a standard that fits the professionalism of the organization.

Posted by M. Ittleschmerz in Soft Power

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Diogenes of NJ

@Jeannette

“I do not, however, see it as nearing the edge of democracy” – they never do.

I would like to take this opportunity to relate the tale of an experience that took place late in the summer of 1963 – one that has taken better than four decades to bubble up back into my consciousness. You may choose to dismiss it as the ranting of an old man. After you discover that you have become your parents, you will find out that you are also on the way to becoming grandpa Simpson.

There are two things that shaped my youth. 1) You couldn’t have a World Series without the NY Yankees and 2) the United States had never lost a war.

In 1963 the drinking age in NYC was 18. I had graduated from high school that summer and had gotten a summer job in a delicatessen on 2nd Ave near 86th street in Manhattan, an ethnic neighborhood. (This will not turn into American Graffiti – there will be no buxom young babes.) My friend had a summer job in his father’s establishment that catered to the neighborhood locals in need of liquid refreshment – sort of a place where everyone knew your name. So friendly was the place that certain clients were given special names (like call signs). One such client was “Fritz – the Nazi”. Not a bad fellow really. He had been through a lot. A recent German immigrant, he had served in the Wehrmacht – a chapter in his life to which he would only grudgingly admit. The rumor from other clients who still had relatives in Germany was that Fritz had been… well if he ever was, he had seriously reformed.

On Thursday nights, we had a regular 9 PM poker game at another friend’s house in Astoria. We would all be going to different colleges in the fall and we kind of hoped that we’d stay connected by having a regular activity to attend. I would get off of work at 6 PM and proceed to my friend’s father’s establishment. My friend would get off around 7 PM when the evening bartender arrived (hard to get someone to tend bar in the afternoon – the tips are lousy). We’d have at least an hour to kill before we’d head over to the subway and out to Queens.

Fritz was a regular. He’d come in at 6:30 PM (like clockwork, except Sunday). He’d order a shot of schnapps and a two beer chaser. He’d smoke three cigarettes (smoking in a bar in NYC – imagine that Bloomberg); and usually left around 7:30; unless of course someone were to buy him a drink. For that favor, Fritz would have his monologue ready about how well West Germany was recovering from the war and how you really needed to take a trip there to see how beautiful things had become. On this particular night, we had an ulterior motive. We wanted to see if we could get him to talk about his war time experience, and if he’d ever fought the Russians on the Eastern front (it was a prospect that we thought might occur in our own soon-to-be future). So we bought him another shot and a chaser.

We did not get the answer we were expecting. Instead Fritz proceeded to tell us how this country would never make the mistakes that Germany did. He told us that how at first the Nazis were good for Germany. They brought progress and patriotism. The people eventually came to believe that the Führer’s plan was Germany’s destiny. It would be glorious for Germany and the people (most of them anyway). Anyone who did not believe was likely a subversive communist (or worse). He maintained that after the example of what had become of Germany, no people and Americans in particular, would ever again fall for Nazi lies and deceit. He told us that we (America) would defeat the communist Russians and that Germany would be reunified. The one thing that he was most adamant about was the fact that unlike Germany, the officers in the U.S. Army would refuse to swear an oath of allegiance to anything other than the United States Constitution (we believed that he was studying for citizenship). He said that it was the “Führer Oath” that made it possible for the Wehrmacht to swallow the Nazi lies and the inconsistency that grew greater on a daily basis – the people of the United States would never stand for that. It could not happen here.

We were a little disappointed at the lecture and went off to play poker. We did remark to one another on the subway that Fritz was really spun up about that “Führer Oath”, whatever it was, and that he probably was a Nazi (in hindsight I think not). It remained in my subconscious for nearly four decades until it was finally shaken loose.

I have no control over where political correctness will take the Nation. My worst case scenario plan is to take at least two of the bastards with me. It will likely not come to that in the time I have left. I do not wish to be any younger however.

Jeannette you owe me a schnapps. I’ll be happy to buy both you and URR a beer, or whatever else you’re drinking after the “Smoker”; regardless of who comes out on top.

- Kyon

P.S. A squid’s gotta tweak the Marines – I can’t help it.
Sperrwaffe

@ Diogenes of NJ

And all that while I am drinking my evening tea, having brought my son into bed.

Thank you very much for sharing that story of yours. I appreciate that a lot.
Fritz has told you very well what influenced developments in the Wehrmacht. But thats not all. It would take a lecture to scan through all details. German society was still heavily influenced through the extremely conservative Kaiserreich of Wilhelm II. IT went through every piece of the country. This could not be redone in the 15 years of the Weimar Republic. Which was dead long before 1933. Just another piece to consider.
But no one can say, that they did not know what was happening after 1933. And after the Kristallnacht in special. No Sir!

Not all in the Wehrmacht were positive about that new oath. Especially those who started in the Reichswehr of the Weimar Republic. They stood heaviliy against it. And before Dönitz the Navy resisted the Führergruss. And also some parts of the Army. But not for long. After the War had started this finally declined.
Let me tell you something in return:
My Grandfather was one of the Soldiers who started in the Reichswehr and he was proud of that. I guess it made things a bit easier for him. He had seen a lot, especially as a medic. Poland, France, Russia and at Kursk he was wounded. Luckily. He survived after having recoverd as a basic trainer in a medical barrack in Bavaria. He never talked a lot about his experiences. Only his last years (he died at the age of 96) I was able to get some out. Maybe because I joined our Navy. When I overtook him in Rank (his last rank was Lt, wartime promotion) he openend a little.
Like your Fritz he never was to open.

My wife experienced a little bit different story.
As mentioned she grew up in the GDR (I grew up in the west). When she joined the German Army her Grandfather was not very fond of her decision. He had been through a lot. He had to flee twice because of the Red Army. First from East Prussia and then he witnessed the Battle at the Seelower Hights. He went to Northwestern Germany but decided to go back, because at that time refugees where not always welcomed.
And then came the GDR and after some years all his land was taken because of the land reform.
He took my wife to the Seelower Hights (he lived only some miles from there) and showed her around the battleplaces. He told her a lot. Everything he and his wife had experienced. Never before had he done this. Things even his sons didn’t know.
And then he finished his story with this statement:
“It is your duty to never let that happen again. Never again!”
He had made his peace with her decision to serve as an Officer in the German Army.

That is why I related in my comment to this:
“There have been a lot of incidents where you might apply the misuse of governmental power to restrict the right of freedom of speech. But the way I see it is, that this is not bad per se. It creates a awarness, lets you evaluate, keeps you alarmed about your fundamental rights as a citizen.”

Be alarmed. And question the events around you.
Like Fritz told you though his words.
But don’t overact because of some natural Angst.

So. What Schnaps do you prefer, Kamerad? Linie Aquavit or Jubilaeums Aquavit?
UltimaRatioReg

Sperwaffe,

One of the reasons the American people have retained the freedoms they have is a natural mistrust of government, and the actions of those in it that impinge on our freedoms. The angst is and mistrust is ingrained in us as a result of the collective political and social oppression experiences of those who settled our nation. That makes us significantly different from any nation on this earth.

When we cease to hold that mistrust, and turn our liberties over to those who govern instead of making them beholden to our will, the grand experiment will be at an end.

Perhaps the shortest route to that end is the breeding of an intellectual totalitarianism that is couched in pseudo-politeness and political correctness, but is in reality a mechanism for the worst kind of censorship. That is nowhere in the Constitution which General Dempsey is sworn to support and defend. On the contrary, it is antithetical to it in every way.

I questioned the event of Admiral Mullen’s indiscretion, and again more strongly with General Dempsey’s first outburst. The time for simply asking the questions is passed. Answers should be demanded, from him, his boss, and the elected officials at the highest levels of this Administration.
http://blog.usni.org M Ittleschmerz

URR – obfuscation. You cannot really be trying to say that General Dempsey’s statements are synonymous or analogous with “law, rule, statute, or ordinance of the government”.

You are also completely misreading the Pendleton Act as well as the Hatch Act. Nothing in the Chairman’s words or actions censured, prohibited, or restricted anyone. He said “It’s not helpful to me” (probably much in the same manner that you view my commentaries as not helpful to you) and he made a phone call. He did not issue an order, prohibit someone from saying or doing anything, and none of the people he spoke about are on active duty and thereby subject to the Chairman’s orders. Or even his whims.

Again, you made the contention that “it has long ago been ruled that government action, to include statements by government representatives directed toward private citizens and entities, is coercive by its nature.” That is the statement that you have not backed up and that I cannot find support for.

Your contention was not that government statutes et al. have been found to violate the Constitution, but that the General’s words and deeds were coercive and that such action alone has been “long ago ruled” as coercive.

By your logic, if I (active duty officer) am in uniform and pass by a political protestor of any sort, and comment that they are blocking my normally free access to a building I am acting in a coercive manner. Even if I just say “excuse me, you’re blocking my path.”

I just don’t by the coercive nature of your argument and you refuse to put forward any case law that applies.

Should he have made the comments about SOFREP? No. Not unless he was consistent about all retirees or non-active duty military personnel.

Was it illegal, improper, or immoral that he made those comments? No.

Should he have called the Pastor? No. Because all the call did was give a fringe element more credibility.

Was it illegal, improper, or immoral that he made the call? No.

Should you have told the Chairman to “shut the hell up”? No. Because it completely changed the argument and upped the vitriol to the point that the vitriol overode the discusssion points.

Was it your right to do so? Yes. But so what? Having the right to do something doesn’t make something in and of itself right to do.
SecretSquid

M.I.,

I appreciate your clarification. It looks like we agree that Gen. Dempsey’s conduct in both the matter of the OPSEC veterans and his call to Pastor Terry Jones were inappropriate and exceeded his authority. We agree on guilt. We seem to differ on two things: the nature of the trespass and the degree of seriousness.

For the record, I have not asserted that the Chairman must resign. However, I do believe these two incidents raise serious questions about Gen. Dempsey’s ability to maintain the independence and objectivity his office requires. It seems you agree with me on this point. I believe that Gen. Dempsey has compromised himself, and he owes the nation and his subordinates an accounting for this.

Now, turning to the nature of the offense, you seem to suggest that it might be permissible for high ranking uniformed military officer to discourage religious speech as long as he asks nicely, and that this would be justified by the General’s own free speech rights. You assert that the General’s comments cannot have been construed as coercive, because Pastor Jones is not a military member subject to the UCMJ and also because you have sized up Pastor Jones and you have judged him to be the sort of person who is not likely to be intimidated. On the other hand, where you think Gen. Dempsey may have gone astray–aside from siding with partisans in a political dispute–is in exercising “undue command influence.”

Yet the essential element of the offense is that the Chairman has misused his authority as a senior military officer to discourage constitutionally protected free speech. General Dempsey’s own actions in these cases cannot fall under the category of constitutionally protected free speech, because these were actions and expressions he undertook under his official capacity as a commissioned officer of the U.S. Government. It does not matter whether he was in uniform at the time (remember, the General is always the General, even in his shower togs). It does not matter whether he asked nicely or whether he stated his request as a directive. It does not matter whether the private citizen is a quaking jellyfish or has a titanium spine.

When a General Officer calls a private citizen and asks him to refrain from engaging in certain religious speech, he must understand that the private citizen may reasonably consider this intervention to be intimidating. Certainly, for General Dempsey to make the call personally, he clearly intended to use his authority to dissuade Pastor Jones from promoting the IoM video, on the grounds that Pastor Jones would be responsible for violating the national security interests of the US by engaging in such speech. In short, personal communications by uniformed military officers — and other federal government officials — directed toward civilians are INHERENTLY coercive. It is simply impossible for an active duty military officer to separate himself personally from the authority he wears. You acknowledge that General Dempsey had no legitimate authority to direct Pastor Terry or the OPSEC veterans to do anything, yet you bizarrely conclude that this means he did not exceed his authority. This is the very definition of exceeding one’s authority.

The truly pernicious thing about General Dempsey’s actions here is that he uses his authority as the nation’s top military officer to deflect blame for damage to American security interests from the Muslim extremists who initiated violent acts against US embassies to US citizens engaging in constitutionally protected speech. When the US military points the finger of blame at a private US citizen or a group of private citizens, it results in an undeniable chilling effect on others who would potentially engage in similar speech. Indeed, that was General Dempsey’s intent from the start.

Keep in mind that for every sensationalist pastor who burns Korans on TV there are a thousand sincere Christian missionaries seeking to evangelize in Muslim neighborhoods. For every rogue SEAL who violates his NDA there are thousands of veterans who sincerely object to politically sanctioned leaks that compromise national security secrets. Who can say which will say or post something that offends Muslim radicals or threatens political partisans? And can you imagine the stifling effect on religious debate of knowling you will being singled out by the nation’s top military officer if your sincere expression of religious belief becomes the Administration’s scapegoat for a national security disaster?

Further, it is simply not for General Dempsey or any other Federal Government official to decide which religious or political expressions are “helpful” to US national security objectives and which are not. Particularly when it comes to religious expression, the Federal Government is prohibited by the First Amendment from taking sides in the marketplace of religious ideas. It must remain on the sidelines and allow private actors to duke it out on the force of their arguments and persuasive devices. Protection of US constituional rights is a national security end unto itself.

I remain baffled by your citation of “undue command influence” and reference to Gen. Amos. As I understand “undue command influence” it is military legal prohibition against expressions by a senior officer that may tend to prejudice a jury pool in Courts Martial or administrative proceedings. Perhaps you can explain how Gen. Dempsey may have been exercising “undue command influence” over private citizens who are not serving in the military and who will never serve as jurors in a UCMJ proceeding.

The truly bothersome thing about your line of argumentation is that by shopping around for alternative rationales you are trying to keep open a back-door justification for military officers to trample free speech rights. No amount of linguistic gymnastics can justify forgetting our oath. It is very simply never acceptable for an active duty US military officer to attempt to suppress constitutionally protected religious or political expression by private US citizens.
RickWilmes

The discussion about oaths and Germany remind me of two things that should be considered during this discussion.

“In the U.S. military services, loyalty and honesty—often described as integrity—are highly prized virtues. They rank right behind courage as prized characteristics of an officer. Although there is perpetual friction and competition between them, we need go no farther than the oath taken by all military officers: “I solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic . . .” This provides the necessary direction as to where our primary loyalties should lie—to the Constitution, not to our commanders. As a matter of custom in the Marine Corps, officer promotion ceremonies include a renewal of that oath to underscore at each promotion that there are new opportunities to contribute. Equally important, it reminds officers their overriding fealty is to the nation.

Senior military commanders are most likely to face this dilemma. Because their responses are key to high-level policy decisions, they must realize that weighing honesty against loyalty is an abiding responsibility.”

http://m.usni.org/magazines/proceedings/2005-01/critical-dilemma-loyalty-versus-honesty

And,

“We are drifting to the future, not moving purposefully,” Peikoff warns. “But we are drifting as Germany moved, in the same direction, for the same kind of reason.”

http://www.peikoff.com/lr/home.htm
http://blog.usni.org M Ittleschmerz

@SS – It’s been a while since I wrote the post, but the juxtaposition of the two generals was to show that (1) intentions might not matter and (2) that the Chairman’s actions could be perceived or construed as UCI, not that they actually are.

Further, I think the crux of the argument, in addition to my continued difficulty with the manner in which the first commentary was delivered by URR, is this:

There is a difference between “should” and “shall”. I believe that the General “should” not have made his comments. You and URR and others are in the camp of the General “shall” not make those comments ever or again.

Again, I see lots of reason why the General shouldn’t have made the comments or call – but I also see no legal prohibitions against them. Absent someone’s else’s ideas or essay I’m not buying the concept of coercion as anything more than opinion on the part of a couple of blog commenters.
UltimaRatioReg

Serious misreading of the Civil Service Act? What I provided was a QUOTE.

As for the coercive nature of government (which includes those who speak in their official duties, just as the Civil Service Act connoted, and is now resident in Title 5 USC), there are hundreds of cases. Hundreds. This, the presiding opinion of the Supreme Court from a wartime case involving the Pledge of Allegiance:

“We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority…

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

That you don’t see that government influence is by its nature coercive is rather astonishing. The concept is a foundation of our Constitution, the Bill of Rights, and our political tradition. You have much more work to do than you thought. Augustine. Aquinas. Mill. Locke. Paine.
UltimaRatioReg

And for the record, I didn’t tell General Dempsey to “shut the hell up”. I advised him to keep his mouth shut. He didn’t. Something about “removing all doubt” comes to mind.
Mittleschmerz

“…no official, high or petty, can prescribe what shall be orthodox…”

I take it that you believe General Dempsey’s actions – both of them – were prescriptive? Is that correct? Please explain how.

Yes, government is coercive. So is the USMC. But, where are you drawing the parallel that any action by General Dempsey, or any other government official is de facto coercive.

Again, your quote: “it has long ago been ruled that government action, to include statements by government representatives directed toward private citizens and entities, is coercive by its nature.”

That remains the crux of your argument and remains your opinion, unbacked by anything other than your own statements.

As for the Civil Service Act – yes, you misread it, because you took the quotation out of context and attempted to force your own over it. The Civil Service Act of 1883 is not, and does not, relate to the issue at hand.
UltimaRatioReg

The presiding opinion of the Chief Justice is rather compelling.

Far more than your finger-in-ears “lalalalalalalalalala!” charade.

And there are myriad more cases with that, and other similar rulings, as precedent.

The Civil Service Act dealt with the proper conduct of federal officials in the execution of their duties. That is precisely the context in which I quoted it.

You have proven not to be interested in serious discussion. You are at best, intellectually lazy. At worst, you refuse to recognize your errors. Your assertions are highly questionable even when factually incorrect. And when presented with case law evidence, you ignore it and claim there is nothing backing my statements except opinion.

You should change your name from “Mittleschmerz” to “Baghdad Bob”.
UltimaRatioReg

Even when NOT factually incorrect, which your basic premise is.
RickWilmes

“Again, I see lots of reason why the General shouldn’t have made the comments or call – but I also see no legal prohibitions against them. Absent someone’s else’s ideas or essay I’m not buying the concept of coercion as anything more than opinion on the part of a couple of blog commenters.”

M. I., as the author of the article in question, the burden of proof ultimately falls on you. As commenters, our role is to raise objections and seek clarifications on issues that are not clear. Our role is not to write a legal dissertation refuting your original work.

Having said that, it appears that the main point of contention and disagreement centers around the concept of coercion.

In other words, what is and is not coercion with respect to the Chairman’s action?

Individuals interested in this topic could spend a lifetime of study on the issue trying to identify whether or not a legal law has been violated.

See http://plato.stanford.edu/entries/coercion/#CoeFre.
Mittleschmerz

Which one of us is going “lalalalalalalalalala”?

Remember, I asked, in all seriousness, to provide the case law that tied individual government official action to coercive behavior, which you claim has been settled long ago. And what you give me is a quote from an act that speaks to regulating government officials and try to tie it to something that cannot, by any reasonable man’s standard be seen as prescriptive or coercive.

But you aren’t a reasonable man, are you?

If you want to leave the “homework” up to me, fine. But then I’ll come up with my own opinion which, shockingly, might not actually be the same as yours. I’m happy to listen when you have really researched your points and have actually maintained the same level of analysis and discussion (in other words, when you don’t equate off hand remarks with statutes). Until then, you are just blasting an opinion as fact, which doesn’t make the opinion fact.
Mittleschmerz

And, yes, I misquoted you on what you told the Chairman to do. I kept the feeling and substituted that for the words.
UltimaRatioReg

Well, as long as you were quoting on feeling…

SecretSquid made the point about coersion eloquently. Read it again. That you think it is not reasonable brings into question your reason.

A Supreme Court Chief Justice makes the point I made in a case that has been used as precedent for more than seventy years, and you don’t consider that good enough to prove the point that the government is considered coercive.

Yeah, you do your homework, all right. This is a waste of my time, to try and talk to someone so intellectually bankrupt.
SecretSquid

M.I.:

URR is correct. You are hopeless.
Diogenes of NJ

@RickWilmes –

Diogenes’ wisdom (such as it is) is not wasted on you sir, as you have further improved upon it with some remarkable revelations. General Hoar is much closer to my generation and the generation that fought WW II than is say Admiral Greenert.

Like my youthful memories of the NY Yankees (Mantle, Maris, DiMaggio, Whitey and Yogi), greatness wanes as the generational memory is lost. We shall never see their like again.

http://www.foxnews.com/us/2012/09/23/world-war-ii-submarine-veterans-forced-to-disband-national-group/

@Sperwaffe –

Fritz was partial to Goldwasser. He drank it for his health. I tasted it once and didn’t care for it much. I will be happy to drink whatever you’re buying. When the Schnaps (I used the German spelling this time) runs out, I still have an excellent bottle of single malt and a few fine Fuentes. BTW, Pierre Salinger bought JFK a warehouse full of Cubans just before the embargo hit. Today’s Cubans are very inferior, they don’t maintain the soil the way they did pre-Castro. Communism ruins everything.

- Kyon
http://blog.usni.org M. Ittleschmerz

SS said : “In short, personal communications by uniformed military officers — and other federal government officials — directed toward civilians are INHERENTLY coercive. It is simply impossible for an active duty military officer to separate himself personally from the authority he wears.”

I have said this”By your logic, if I (active duty officer) am in uniform and pass by a political protestor of any sort, and comment that they are blocking my normally free access to a building I am acting in a coercive manner. Even if I just say “excuse me, you’re blocking my path.”
I just don’t by the coercive nature of your argument and you refuse to put forward any case law that applies.”

I have yet to see anything that any of you have posited that makes the Chairman’s words coercive.

And I have read and reread your points. Just saying something is so does not make it so.

I do not believe the Chief Justice’s comments are not germane to this discussion.

I do not believe that an individual, even in acting within his capacity as a government official de facto constitutes coercive behavior.

You guys do.

Call me “hopeless” or “intellectually bankrupt” all you want. You have not made your case no matter how hard you think you have. In the end you come back to your opinions…nothing more. We all get to have our own opinions. We don’t get to create our own facts, which is something you accuse me of when I state an opinion but something you don’t think you are doing.

The above post is my opinion. Period. It is not presented as “fact”…it is my opinion.

SS and URR – you present your opinions as irrefutable fact. Which means it must be supported by something other than opinion. Such as case law or legislation or statute that is directly applicable to your opinion.

Asking for that, and disagreeing with your opinions does not make me either “hopeless” or “intellectually bankrupt”.
SecretSquid

M.I.,

So it seems you’ve conceded that neither “First Amendment Right” nor “Undue Command Influence” actually apply to either of the two incidents in question. Little if anything remains of your original arguments.

Your attempts to sea-lawyer your way out of recognizing the constitutional limits that prohibit Executive Branch officials from suppressing protected speech are not exactly persuasive. URR is correct–the inherently coercive nature of Federal Government authority and its “chilling effect” threat to First Amendment rights are long-settled law, and widely understood and accepted by most other serving officers. It’s a line we simply would never cross. It’s unreasonable to insist that others do the tedious work of connecting the obvious legal dots for you. Any JAG LT or LN1 should be able to help you out.
SecretSquid

M.I.,

Gen Dempsey wasn’t “just passing by” Pastor Jones’ church on Sunday morning.

No reasonable person would feel intimidated by an “Excuse me, sir,” from a uniformed military officer.

On the other hand, if the Chairman of the Joint Chiefs of Staff calls a Christian minister he’s never met and says in effect, “Stop spreading anti-Muslim hate videos. You’re putting US national security at risk, and distressing the President,” that person very likely WILL feel intimidated. He would have every expectation that he would have the full force of Government approbration directed at him. The President, the Secretary of State, the Ambassador to the UN, and the Secretary of Defense will publicly single him out for blame as they denounce this “provocation.” He might very well face harrassment by local law enforcement agencies looking for a legal pretext to address what they might consider a political nuisance. Members of Congress will introduce “hate speech” legislation that will be unofficially tagged with his name in the news media.
http://michael@michaeljunge.com M. Ittleschmerz

Since I happen to have access to a number of JAGs I’ll run the Chairman’s actions by them and get their professional opinion.

Since neither you or URR are JAGs it won’t surprise me if their psrofessional opinion differs from yours.

If it does not, then at least they will be able to provide some relevant case law, since neither of you choose to.
SecretSquid

Excellent and instructive comments by Rick, Diogenes, and Sperrwaffe on the Loyalty Oath. Greatly appreciate these thoughtful and enriching posts.
UltimaRatioReg

I can just imagine how you will represent the issue to a JAG to get the answer you want.

You remind me of your hero who seemed to forget about Marbury v Madison when he made his remarks about the Supreme Court not deciding Constitutionality of laws. Perhaps you both have the same definition of “relevant case law”.
SecretSquid

M.I.:

As you likewise are not a JAG, I hope you also won’t be surprised if their professional opinion differs from yours.

I’ll be interested in the outcome of your JAG consultation. I don’t pretend to be a legal expert…I’m an Intel Officer, not a JAG. But as I indicated, I think this is pretty basic officership. I’m sure you will come back either with a humble correction, a new angle, or a much sharpened revised argument.

One hopes Gen. Dempsey gives us no new occasion to advance this discussion, though the political minefields of civil-military relations always offer ample opportunity for future intellectual combat.

Thanks for the engaging discussion.

V/r,

SS
RickWilmes

“I have said this”By your logic, if I (active duty officer) am in uniform and pass by a political protestor of any sort, and comment that they are blocking my normally free access to a building I am acting in a coercive manner. Even if I just say “excuse me, you’re blocking my path.”
I just don’t by the coercive nature of your argument and you refuse to put forward any case law that applies.””

M.I.,

I’ll take this one on and URR may also find this of interest since he referenced the Nazi group in Skokie.

“In regard to the lawsuit to prevent a Nazi group from marching in Skokie, Illinois:

What I challenge (and not only because of that particular case) is the interpretation of demonstrations and of other actions as so-called “symbolic speech.” When you lose the distinction between action and speech, you lose, eventually, the freedom of both. The Skokie case is a good illustration of that principle. There is no such thing as “symbolic speech.” You do not have the right to parade through the public streets or to obstruct public thoroughfares. You have the right of assembly, yes, on your own property, and on the property of your adherents or your friends. But nobody has the “right” to clog the streets. The streets are only for passage. The hippies, in the 60s, should have been forbidden to lie down on city pavements. (They used to lie down across a street and cause dreadful traffic snarls, in order to display their views, to attract attention, to register a protest.) If they were permitted to do it, the Nazis should be permitted as well. Properly, both should have been forbidden. They may speak, yes. They may not take action at whim on public property.”

http://aynrandlexicon.com/lexicon/free_speech.html

So in principle, a military officer may not ask the protestors to move, a matter of jurisdiction; but a police officer or national guardsman is legally justified to use his powers of coercion to tell the protestors to get the hell out of the way.

Abstracting the principle to foreign policy, the Chairman not only should but must say in no uncertain terms that attacks on our Embassies and citizens is an act of war and we have a right to defend ourselves.
UltimaRatioReg

Rick,

You are indeed correct. Precedent is a very powerful thing, especially when applied to government action. I remember the heated discussions in the classroom (the Nazis marched my sophomore year in HS) in which my civics teacher told we young and callow youth, full of indignation at the decision, that once the government has allowed one person or group to do it, it cannot legally forbid another from the same actions. He specifically referred to the protest marches in New England of a few years before.

I remember him saying something to the effect that, if the government can pick and choose here, it can pick and choose in other places, which violates our Constitution. Mr. Damore was a pretty smart guy.
http://blog.usni.org M. Ittleschmerz

@URR…

“I can just imagine how you will represent the issue to a JAG to get the answer you want.”

Fear not, I will post the exact question or phrasing I used. I have no problem saying “Oh, well…guess I was wrong.”

“You remind me of your hero who seemed to forget about Marbury v Madison when he made his remarks about the Supreme Court not deciding Constitutionality of laws. Perhaps you both have the same definition of “relevant case law”.”

Who, pray tell, is my “hero”?
RickWilmes

@ Diogenes

Thank you for the kind words.

“Diogenes’ wisdom (such as it is) is not wasted on you sir, as you have further improved upon it with some remarkable revelations. General Hoar is much closer to my generation and the generation that fought WW II than is say Admiral Greenert.

Like my youthful memories of the NY Yankees (Mantle, Maris, DiMaggio, Whitey and Yogi), greatness wanes as the generational memory is lost. We shall never see their like again.

http://www.foxnews.com/us/2012/09/23/world-war-ii-submarine-veterans-forced-to-disband-national-group/ ”

As a young boy, I lived in Okinawa, Japan and learned to play organized football on the fields of Kadena Air Base. During practice, we would stop for colors. From our practice field you could see the ocean from where the Battle for Okinawa was fought. Where I learned to play football, many men lost their lives fighting for our liberty and defending our Constitution. So I am sad to see that the submariners are disbanding their group. But it also inspires me to keep up the intellectual fight.

Another thought concerning the Oath. It is not very inspiring to defend IoM and Pastor Jones, but it is a matter of principle. Something that is lost on the current Chairman and his apologists.

“It is not very inspiring to fight for the freedom of the purveyors of pornography or their customers. But in the transition to statism, every infringement of human rights has begun with the suppression of a given right’s least attractive practitioners. In this case, the disgusting nature of the offenders makes it a good test of one’s loyalty to a principle.”

http://aynrandlexicon.com/lexicon/free_speech.html
http://www.usni.org admin

There are many comments which are personal. By that, comments that move away from disagreement into the area of personal – less about the propositions of the argument.

Just a friendly reminder to all that Naval Institute supports a healthy debate and is observing this conversation.

A vehement disagreement on ideas, on supporting an argument is okay and necessary. Jabs are not.

The comments will not be closed on this post but those who can’t abide by our policies of respectful discourse will be placed in moderation or banned.
UltimaRatioReg

Witness the chilling effect on free speech brought on by a harsh and much-feared authority…..

Yes, I do slay me. Thanks for askin’.
Diogenes of NJ

@URR -

Why don’t you start a thread wherein the “geezers” can reminisce? Old guys are basically harmless and don’t threaten anybody. And if we do, there’s medication for that.

- Kyon

P.S. When’s that “smoker”?
UltimaRatioReg

“Smoker”? That probably isn’t a good idea.
SecretSquid

URR,

Almost forgot about the downside to hanging around with Marines at respectable establishments. Just when the party gets going and the “no s***” sea stories start coming out, the Jarhead winds up breaking the nice china and getting us kicked out of the joint.

It will be interesting to hear what M.I. has to say after his JAG consult. Surprising we haven’t had any JAGC commenters weigh in–perhaps they don’t blog unless they can bill someone.

V/r,

SS
UltimaRatioReg

SS,

Some people don’t appreciate our well-honed sense of humor or innovative ideas of “fun”.

There are JAGs that comment at Salamander’s place.
http://blog.usni.org M. Ittleschmerz

Below is my exchange with a Navy JAG today. It was by email. My questions are preceded by “MI”. The JAGs’ by “Lawyer”. I edited for format (put it in order and removed email addresses and so on). I have not changed any of the content.
———————
MI: While I have a lawyer on the horn… Any chance I can get a
professional yet not for attribution JAG opinion on CJCS Dempsey’s
comments along the lines that political action by veterans is “not
helpful” to him as well as his cal to Pastor Jones.

Were those action legal or in accordance with regulation? If not, why not.

I’m in an Internet argument with some folks and I decided it was time
to ask a pro.

Again, only if you have the (hopefully) minute or two it would take to
answer. If its more involved than that, just tell me to pound sand.

Lawyer: Assuming you talking about his comments on Fox News…I found them after doing a quick search. I don’t think he (meaning General Dempsey) violated any rules. If you are talking about the former military members (SEALs, etc.), while their actions in creating a PAC may not be helpful in maintaining an image/perception of an objective military, I don’t think they violated any rules as long as it is clear that they are not active duty members. Note: Active duty members may make a monetary contribution, but cannot create a PAC or fundraise even if in their personal capacity/not wearing uniform. However, I think there could certainly be a perception by the average Joe that this PAC is military or endorsed by military, but don’t know if that actually violates any rule/law.

And I had to give myself a little refresher on the rules:

In a nutshell, and this is simplifying things, the below statute (Section 607 of Title 18 USC) basically states that you cannot engage in political campaigning/fundraising activities while in your official capacity and/or on government property (e.g., Neither I nor my civilian husband campaign for a political candidate on base or in base housing). This is further delineated in DoDD 1344.10 (link below), which gives more specifics. Basically, it is okay to show up to partisan events not in uniform, but not okay to show up in uniform. Regarding active duty members creating a PAC and engaging in partisan political fundraising, I think that would violate section 4.1.2.1 of the directive.

Link: http://www.dtic.mil/whs/directives/corres/pdf/134410p.pdf

Sec. 607. Place of solicitation
(a) Prohibition. -
(1) In general. – It shall be unlawful for any person to solicit or receive a donation of money or other thing of value in connection with a Federal, State, or local election from a person who is located in a room or building occupied in the discharge of official duties by an officer or employee of the United States. It shall be unlawful for an individual who is an officer or employee of the Federal Government, including the President, Vice President, and Members of Congress, to solicit or receive a donation of money or other thing of value in connection with a Federal, State, or local election, while in any room or building occupied in the discharge of official duties by an officer or employee of the United States, from any person.
(2) Penalty. – A person who violates this section shall be fined not more than $5,000, imprisoned not more than 3 years, or both.
(b) The prohibition in subsection (a) shall not apply to the receipt of contributions by persons on the staff of a Senator or Representative in, or Delegate or Resident Commissioner to, the Congress or Executive Office of the President, provided, that such contributions have not been solicited in any manner which directs the contributor to mail or deliver a contribution to any room, building, or other facility referred to in subsection (a), and provided that such contributions are transferred within seven days of receipt to a political committee within the meaning of section 302(e) of the Federal Election Campaign Act of 1971.

MI: Any opinions on the call from the Chairman to the pastor?

Lawyer: Again, had to look it up. Funny…I was in Bahrain for a couple of weeks and must have missed those particular stories while I was there (dates seem to coincide). Have to say, it was the first time I was nervous over there and was there in March 2011 during the demonstrations…

No laws broken by General Dempsey calling the Pastor. But can certainly understand why he did. Unfortunately, the pastor is already a public figure and known by those in the Middle East because of his prior antics. Something that many Americans do not understand are the cultural/religious differences as well as the political environmental differences. In the US (as well as British Commonwealth countries), our laws and cultures allow freedom of speech and religion (although rights not absolute. However, in Middle Eastern countries, people in those countries do not have the same rights. For example, movies made in those countries would be government-sanctioned films/movies. The government in most of the countries control the media. Not so in the US because of our freedom of speech.

You may find this interesting. The day we were flying out of Bahrain on 14 Sep, we had an interesting conversation with a “liberal” Bahraini policeman in a shop (he was not on duty). He began discussing the demonstrations and the film and said that if someone in the US made a film that was offensive to the Christian faith or the Jewish faith that those people would be “brought to court”. The three of us in unison shook our heads and said, “No!” And then we explained how we have free speech and our films are not controlled by the government. He was quite taken aback.

Not sure if this helps you at all. But certainly an interesting discussion.

————

End exchange.
RickWilmes

@ M. I.

“Lawyer: Assuming you talking about his comments on Fox News…I found them after doing a quick search.

MI: Any opinions on the call from the Chairman to the pastor?

Lawyer: Again, had to look it up.”

Any chance you can find a JAG that is better informed on current events?

Also ask the JAG what his opinions are concerning the issue of coercion which is inherently implied in the Chairman’s phone call. I still think this is main issue of disagreement.

http://plato.stanford.edu/entries/coercion/#CoeFre
http://blog.usni.org M. Ittleschmerz

Rick – No on both. The lawyer was not prejudged, looked it up, gave an opinion.

If YOU (or anyone else) want to ask a lawyer about the coercion piece you are so adamant about, go ahead. I asked an open and broad question on purpose. I got an answer. If I happen to find another JAG who is willing to spend the time, I will ask.

I will NOT take your questions and pass them to any JAG. That’s be doing YOUR homework (right URR?)
UltimaRatioReg

Nobody said the General broke any standing statutes. What we (SS and I, and many others) assert is that his call to the Pastor is an infringement upon free speech, and a violation of his oath of office. You can be charged under 134 without violating any public laws or articles of the UCMJ.

The question you should have asked him was whether or not government action is by its nature coercive. If he didn’t have a grasp of precedent from the 1943 pledge of allegiance case, then yes, you should ask another lawyer.
M. Ittleschmerz

Since we’re so far into this, I’ll bite If you want to go Article 134, then you can write a charge sheet because you don’t like the look of his shirt. I’d like to see what you’d put on that charge sheet and how you’d present your case.

For that matter, can you point me to any case where someone violated the oath of office but did not also violate the law? And please, stick to active duty military for your supporting examples,

Or just admit that you’re in the land of wishful thinking and have nothing of substance to back up your claim that the Chairman violated his oath.
RickWilmes

@ M. I.

I have done my homework. As time allows, I am reading the Stanford piece on coercion that I linked to above and will read some of the articles mentioned in the bibliography. But this will take time.

In the meantime,

“The difference between political power and any other kind of social “power,” between a government and any private organization, is the fact that a government holds a legal monopoly on the use of physical force. This distinction is so important and so seldom recognized today that I must urge you to keep it in mind. Let me repeat it: a government holds a legal monopoly on the use of physical force.

No individual or private group or private organization has the legal power to initiate the use of physical force against other individuals or groups and to compel them to act against their own voluntary choice. Only a government holds that power. The nature of governmental action is: coercive action. The nature of political power is: the power to force obedience under threat of physical injury—the threat of property expropriation, imprisonment, or death.”

http://principlesofafreesociety.com/limited-government/

So let me repeat,

“The nature of governmental action is: coercive action.”
http://blog.usni.org M. Ittleschmerz

Rick, in the abstract I don’t disagree. I just don’t draw the direct line between the comments and call fom the Chairman and coercion. And so far no one has provided an external viewpoint that supports the coercion mantra.
UltimaRatioReg

MI,

I call ‘em as I see ‘em. For the CJCS to place blame on the insensitivity of the American serviceman for the fact that our Afghani “allies” are murdering them deserves no more polite description. So no, I won’t stop. Maybe he should, though.

Proving to you that I am smart, or at least your version of it, is well down on the list of things I remotely care about.
SecretSquid

M.I.:

Not sure your exchange with the JAG sheds any new light. He didn’t exactly seem fully engaged in the argument…spent more words assessing the legal particulars of OPSEC PAC contributors than on the authorities of a military officer to suppress private speech. But I suppose you get what you pay for when seeking free legal advice. If the best that can be said is that the Chairman violated no laws, then I’m not sure we’re setting the bar very high for the nation’s senior military officer.

I think the crux of our difference is whether the Chairman’s actions were sufficiently coercive to cross a First Amendment “red line” and constitute an abuse of authority. Rick, URR, and I say yes. You say no. Your friendly neighborhood JAG really didn’t addres the question, or at least not explicitly.

If there were no restriction on the authority of military personnel to make directives to private citizens suppressing religious speech, I wonder what is to stop the Chairman from sending uniformed soldiers to churches across America to politely ask the congregations to refrain from any speech which might offend Muslims?
http://tobeortodo.com J. Scott Shipman

SecretSquid, Well said.
UltimaRatioReg

J. Scott,

He does okay for a swabbie, dunnt he?
Jeannette Haynie

I’m tempted to start a new thread.

Here’s the crux as I see it. We all seem to agree that the phone call to the pastor was questionable at best. And the comments re: the veterans’ group vs President Obama. A JAG was consulted, but she saw no legal issues with what happened (the description of the cultural differences was great, though–a prime example of where “we” differ from “them”).

I still do not see it a resign-able offense, and in the absence of further information, don’t think I ever will. That said, one of the author’s original points was that it is important to bring this stuff up, regardless of where you fall on the spectrum of hating the Chairman or loving and forgiving him (pardon the exaggerations in that statement).

I also do not see it as nearing the edge of democracy. BUT one of the things that, again, makes this country great, is that it’s alright for us all to disagree, as long as the important things are being talked about, and that’s exactly what’s happening here.

URR, I found that article a week or so ago, and was thinking about doing a post on it, it bothered me so much.

But I still don’t think General Dempsey should resign. I just think that what we’re doing right now, bringing attention to our questions, is important enough.

First Amendment Right…or Undue Command Influence?

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