“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


Responses are currently closed, but you can trackback from your own site.

  • Aubrey

    You are advocating political control of speech. You have moved well past the accepted “yelling fire In a crowded theater” standard, and are we into a new “if we don’t like it” standard. Shame on you, and shame on the shortsighted fools who believe the same way. It is outlooks like yours that endanger ALL of our Constitutional rights.

  • Diogenes of NJ

    It seems as if the administration’s whole Middle East foreign policy is about to go up in flames (literally). The fiction the Chairman put forth as to the cause of the attacks, and most especially the attack in Libya, are but a childish attempt at disinformation that fooled no one.

    I understand the need for OPSEC. I understand the reason for the occasional use of a cover story. I understand the need for plausible deniability. If any of that was attempted at by the Chairman’s remarks and behavior, then it was a miserable failure and he should consider resigning for lack of competence.

    The loyalty oath and what it leads to is a subject that was impressed upon me as a young man. I am older than most who participate in this forum. I am at least a decade older than any who are still on active duty. I will explain the danger as it was explained to me after others have had a chance to make their contributions. It is not something I take lightly.

    For now suffice it to say that every day most of us are underwhelmed by what has become of the leadership of the Nation and the Military Service. The American people deserve much better in a dangerous world.

    – Kyon

  • http://michael@michaeljunge.com M. Ittleschmerz

    Aubrey – where am I advocating political control of speech?

  • UltimaRatioReg

    The First Amendment is not simply a matter of Congressional action or inaction. For a century and a half, the restriction of free speech (and expression, including religious expression) as a right protected by the First Amendment has required due process, those two vitally important words to a nation of laws, words that have been ignored with mounting frequency in the last two decades. This means that any law, ordinance, or decision by ANY government entity that interferes with or restricts free expression must show substantial cause in each and every case. Speech that advocates lawlessness or illegal action, obscenity, false speech, or personal epithets and accusations intended to incite the individual to whom they are addressed to breach of peace. Perceived insult of one’s religion is clearly NOT one of those cases. Until, we are told to believe, now.
    https://xbradtc.wordpress.com/2012/09/11/hypocrisy-writ-large/
    In any case, 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. Hence, Mayors Menino and Emanuel face legal challenge for their public criticism of Chick-fil-a in that they made official and punitive proclamations against a private entity as a matter of public policy as a direct result of the exercise of free expression by Chick-fil-a. Lawsuits will probably cost both cities substantial sums, because their top elected officials disregarded the Constitutional rights of private citizens and knowingly abused their authority as government officials.
    General Dempsey did no less. Twice. His commentary on whether the free expression of political opinion on the part of the retired SEALs was an egregious breach of professionalism, and a dangerous overstepping of authority and rank. I could excuse such, partly, if he had been caught in an unguarded moment on an exhausting trip, and spoke out of turn. If he had said the next day “I shouldn’t have said that”, I would chalk it up to being human. But that was hardly the case. His phone call to a private citizen to try and influence, real or perceived, that citizen’s views, is a dangerous and deliberate act which Dempsey knows good and well is highly inappropriate for an Active Duty Officer of any rank to do. There is no end to that path. In that way, the commenter who invoked the 1934 oath is entirely within his reasonable bounds to do. Because if it is Dempsey calling a private citizen to influence them, why not an active Soldier or Soldiers of junior rank? I cannot decide if it is more bothersome and dangerous that Dempsey actually called a private citizen, or that I believe he did so with so little reservation.
    This is not, nor should it be, the same as a General Officer speaking out of turn regarding legal proceedings in the military. Dumb as that is, it happens frequently and has little effect outside the Armed Forces. What Dempsey did is an affront to the freedoms of that Constitution he is supposed to support and defend, both military and civilian. There is no place for it.
    Once upon a time, in 2007, Marine General Peter Pace, then the Chairman of the Joint Chiefs of Staff, made comments at a Rotary Club dinner that he disagreed personally with homosexuality and gays serving openly in the military. General Pace was admonished for his comments, and pilloried in the press. He deserved the admonishing, as he had broken the rule of expressing privately held views on a political issue while wearing his uniform and in the official execution of his duties as a Commissioned Officer on the Active List.
    Three years later, CJCS Mike Mullen does precisely the same thing, unsolicited by Congress, but expresses support for the opposite side of the issue. He goes much farther than did General Pace, in declaring anyone disagreeing with him has an “integrity” problem. I commented strongly then about the terribly dangerous and unprofessional precedent being set, but since Mullen was on the “right” side of the issue, his actions were deemed perfectly acceptable.
    Dempsey’s commentary on the views of private citizens in the case of the former SEALs, and his phone call to a private citizen to coerce him to change his expressed views are a direct result of Mullen’s blatant and politically-motivated indiscretion. It is not a matter of Dempsey “forgetting he was commanding” or “falling” for any canard. He has no business commenting on the political expression of private citizens, EVER, while wearing that uniform. That includes former SEALs, Pastors, or Admiral Nathman at the DNC. They are all private citizens, and off limits to him or his opinion, official or personal.
    There is much historical precedent. General George Marshall never once commented publicly about the many American citizens during the Second World War who protested the excesses and oppression of the regime of our Soviet “ally”. I am sure it was “not useful “to him, either. But he kept his mouth shut. It was not his place, and he had no business making commentary of any kind.
    That General Dempsey did so once is disturbing. That he has done so multiple times shows that he believes himself unconstrained by his oath of office and our Constitution. He has shown himself not to possess the character necessary for the potential difficulties of his post, and more, he has shown himself to be unworthy to lead. His judgment and loyalty are in question, and he has nobody to blame but the man whose face he shaves in the morning. Keeping his mouth shut would have served him well. He should have heeded.

  • TheMightyQ

    “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.”

    Incorrect. I believe one must differentiate between de jure and de facto violations, if one is to make that comment. In and of itself, it is wrong. The First Amendment would be violated any time someone is arrested or has legal proceedings brought against him or her without due cause by any level of government, be it federal, state, or local, for the exercise of any of the five freedoms.

    Unfortunately for Dr. Kaiser, the gap is his line of reasoning falls where he thinks that he gets to decide which speech has value and which does not. In the case of the “Innocence of Muslims” video, I might even tend to agree with his value judgment, but I am not in a position to judge its value relative to the director’s freedom of speech, either. As such, it must be protected.

    As far as GEN Dempsey goes, as any junior Sailor in the Navy has been told by a chief, one does not have the right to exercise free speech in uniform. As the GEN was acting in an official capacity when making the phone call to Terry Jones, he was out of line. As a person, I can understand his desire to attempt to calm down a volatile part of the world where our forces must serve with local forces who they don’t trust and who have been known to turn around and kill our Soldiers, Sailors, and Marines who are their purported allies. That goal is laudable. However, as a general officer, especially as the Chairman of the Joint Chiefs of Staff, he must know the limits and boundaries of his position, and as such, what he did was wrong, wrong, wrong.

    We have come a long way from a time when being apolitical was a hallmark of the U.S. military’s officer corps. Supposedly GEN Marshall was known never to even have voted, because he considered it unprofessional as a military officer. I don’t know that we’ll ever get back to that, but GEN Dempsey is coming close to abandoning the principle altogether. Now, the slippery slope argument can be a logical fallacy, but it is not something to be ignored. We must needs tread very carefully anytime the uniform mixes with politics, outside of the fact we prosecute war to achieve political ends. It is not our place. To do so, is to endanger and erode that “special trust and confidence” with which we are supposedly invested.

  • Matt

    Everyone is missing one very important thing here. We need to understand WHY these Muslums are raging. Is it because of what was said on the video? NO!

    Their stated beef is that the video violates their Blasephemy Law. This is the same reason they rage over the cartoons and the burning qurans and on and on. In Pakistan, where we are supposedly fighting the extremists this Blasphemy Law has been used by the people and the govt. to assassinate the Governor of Punjab who was Western leaning and it was used to murder the cartoonist Theo van Goh- in Amsterdam!- as two examples (many more). To recognize this law is to recognize as legitimate the murder and assault of all who violate it (the penalty is as wicked as the crime). This law is right out of the Dark Ages, literally!

    This point is being lost on us as we are somewhat ignorant of what this Blasphemy Law is (this law IS from the DARK AGES). This needs to change. We’ve got to understand that this Law is a huge problem. Under no circumstances should anyone, who has taken an oath to support and defend the Constitution, legitimize this law much less seek to enforce it on US Citizens anywhere much less the United States. Those who seek to legitimize and enforce this law, whether states or individuals, should be confronted not appeased. This law is 100% WICKED in the most evil and sinister sense I can convey.

    Live free or die! These words were first spoken by our forefathers who understood, fully, the stakes.

  • Jeannette Haynie

    I don’t see anything in the original post advocating political control of speech. On the contrary, it paints a pretty damn good estimation of what happened–how easy it is to cross that line, even by individuals who have spent decades wearing the uniform and striving to do the right thing. And how we should call out those who do cross that line. And it raises important questions about what they were thinking and where we go from here–questions that should absolutely be asked in light of recent events.

    On a related note, though, the last paragraph mentions provocative speech, inflammatory language, and the invective that generally follows, the kind of commentary and discussion that often poses as real debate. It’s much easier to “win” an argument by painting anyone who disagrees as stupid, ignorant, or dangerous to America, and we see that happen: sarcastic, patronizing commentary, implying that the speaker in question is a fool, but not actually ever addressing the key points of the argument. That only serves to polarize the country further, and to discount entire arguments based on parts. It all goes back to tone and professionalism.

    Yes, General Dempsey should not have called the pastor for multiple reasons (not the least of which is that such a call legitimizes someone like Terry Jones. That will only encourage him and others, like the media attention the Westboro Baptist folks got…and it can harm our foreign policy efforts by painting us–in some eyes–as weak and kowtowing to threats). But call me naive if you want, I do not believe that someone can reach the job of CJCS and be a fool. We are right to call them out when we see them, it’s part of what will keep us all as honest and on-track as possible.

    But the growing tone of everyday discourse–the way the rude, generalizing, scornful tone of internet “debate” has spilled over into everyday life–harms us as well, especially in the services. We don’t win points for being more sarcastic, more scornful, or more provocative in our discussions. I disagree with things said and actions taken at times; I don’t automatically start believing that those I disagree with are stupid, ignorant, or dangerous.

    Matt’s point also resonates with the danger inherent in a phone call like the one General Dempsey made. Like this article from the NYT last week: http://www.nypost.com/p/news/opinion/opedcolumnists/blaming_our_troops_gsNkgSOnejhkmabM2KA6TI.

  • SecretSquid

    M.I., your confusion on this issue is astonishing. Gen. Dempsey was not “expressing a personal opinion.” He is an active duty U.S. Army officer. He called a private U.S. citizen in his official capacity to discourage that private U.S. citizen from engaging in Consitutionally protected religious expression. He further publicized this action through the DoD Public Affairs Office. Gen. Dempsey cannot legitimately argue that he was exercising his own free speech rights; this is an issue of Gen. Dempsey’s abuse of his authority.

    The same is true in the case of Gen. Dempsey’s criticism of the OPSEC veterans. The Department of Defense has no legitimate authority to criticize the political speech of private citizens.

    However, the Terry Jones incident is particularly disturbing because of the international campaign by Muslim activists to establish “Anti-Defamation” laws that punish speech that is offensive to Muslims. Even as we write, the formerly moderate Government of Egypt is demanding that the U.S. abandon the First Amendment’s protections on religious expression to punish speech deemed offensive by Muslims.

    It is deeply disturbing that Gen. Dempsey’s first response is to compromise American freedoms to appease Muslim extremists. It is disturbing that he would even consider such a thing. The Chairman swears the same oath as other commissioned officers–to support and defend the Constitution against all enemeies, foreign and domestic. Surrendering the First Amendment is not an option.

    It is astonishing that you would defend his actions by his supposed distress over seeing the President “pummelled and bothered by criticism.” Gen. Dempsey is a professional military officer, whose job is to provide independent military advice to the President. He is not the President’s sympathy couch. Criticism comes with the job of being President, and if the Chairman cannot maintain his professional obligations and political independence under figurative fire, then he is not up to the job.

  • UltimaRatioReg

    SecretSquid,

    Well-said. That some 20-year old “strategic Corporal” gets scrutinized for every decision he makes, even when actively engaged in combat, is perfectly reasonable, but somehow the Chairman of the Joint Chiefs cannot be expected to exercise proper judgment in the execution of his duties because of some perceived “pressure” from his boss, is anathema to every lesson of leadership from NCO school on up.

    Problem is, however, that I believe Dempsey has no problem with what he did, and sees none of the myriad dangers and violations of his office that are so clear to us. Which is perhaps even more disturbing. He lacks character, in a word. Mullen did too. Pentagonistan. Starting at the top.

  • YN2(SW) H. Lucien Gauthier III

    The whole series of episodes between the words and actions of American Citizens having a direct impact on geopolitics is just another indication of the eroding nature of the Government’s ability (or any governments) to maintain a monopoly in geopolitics.

    Even this debate, and the scorn directed at higher ranking government officials indicates erosion.

  • RickWilmes

    Lucien,

    This erosion of control is the result of “bringing democracy to the world.”

    http://www.forbes.com/sites/richardsalsman/2012/09/19/the-religion-thats-killing-the-world-isnt-just-islam-its-also-democracy/

    ” From Carter to Obama the U.S. has preferred cold-bloodied, religious tyranny, as long as it arrived by majority vote. The religion that’s killing the world isn’t just Islam but also democracy – a deadly but undying faith in the superiority of Rousseau’s “popular will.” Alexander Hamilton rightly called democracy “our real disease,” and yet Republicans today, the progeny of his Federalists, and those who should extol constitutionally-limited secular republic, as their name implies, instead plead for religion and democracy. Joke of all jokes, George W. Bush had an audacity of dope sufficient to call his crusade for democratic theocracy in the Middle East a “forward strategy of freedom.”

    This week marks the 225th anniversary of the framing and signing of the U.S. Constitution at the famous convention in Philadelphia in 1787. Thus it is appropriate to recall that it pledged to Americans a republic, not a democracy. James Madison noted that “there is no maxim, in my opinion, which is more liable to be misapplied, and which, therefore, more needs elucidation, than the current one, that the interest of the majority is the political standard of right and wrong.” Ben Franklin described democracy as “two wolves and a lamb voting on what to have for lunch” and liberty, in that context, as “a well-armed lamb contesting the vote.” According to John Adams, “democracy never lasts long,” for “it soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide.””

  • YN2(SW) H. Lucien Gauthier III

    I don’t take such a pessimistic view on the increasing empowerment of ‘average’ citizens. In reality, the greatest enabler for individuals is not democracy per se, rather it is information technologies like the internet SMS, twitter, et al.

    Look at China. Should we call them a democracy, or even a republic? Regardless of what they are, their society is undergoing fundamental change just like the rest are. What is fundamentally changing is the ability–to put it one way–of humans to piss each other off from half-way across the World directly.

    Increasingly, but still only in certain instances, Governments are responding to the uproar from their citizens based upon the actions of other citizens–Japan and China, US and numerous Muslim countries, numerous countries and Libya, US and China (hackivism).

    I am not saying that democracy is a problem, nor am I saying we’re seeing the end of the Westphalian age. But, I am saying that the fundamentals of how societies interact with each other and their governments is changing, and the debate here and elsewhere, as I outlined above, is evidence of this.

  • Robert_K

    Interesting observation YN2. If you haven’t already read this, Grygiel’s “Power of Statelessness” may be of interest to you.

    “Many of today’s nonstate groups do not aspire to have a state. In fact, they are considerably more capable of achieving their objectives and maintaining their social cohesion without a state apparatus. The state is a burden for them, while statelessness is not only very feasible but also a source of enormous power. Modern technologies allow these groups to organize themselves, seek financing, and plan and implement actions against their targets — almost always other states — without ever establishing a state of their own. They seek power without the responsibility of governing. The result is the opposite of what we came to know over the past two or three centuries: Instead of groups seeking statehood through a variety of means, they now pursue a range of objectives while actively avoiding statehood. Statelessness is no longer eschewed as a source of weakness but embraced as an asset.”

    http://www.hoover.org/publications/policy-review/article/5568

    While Grygiel examines the issue at the geopolitical level, you are correct that this discussion, and the entire milblog community, provides evidence at the micro level to his point. Groups of well-meaning and well-informed individuals are self-organizing to challenge legitimate authority – while in reality they have no skin in the game. One has to wonder where this will all lead – is our current concept of governance a thing of the past?

  • UltimaRatioReg

    YN2,

    The much bigger concern is the fundamentally dangerous precedent the comments of an Officer on the Active List represent to civil liberties, and the drastic overstepping of military authority, seemingly without so much as a second thought, at the behest of political bosses. In direct contravention to the Constitution which that Officer is sworn to support and defend.

    Also, except for almost entirely Western nations, there is no such thing as the Westphalian Age. Never was, never will be.

  • Mittleschmerz

    URR – do you think you might be blowing this just a wee bit out of proportion? Just a wee bit?

    The Chairman’s (and Commandant’s) are definitely things to discuss, in a civilized manner, but I don’t think either’s actions portend a Constitutional apocalypse.

    Leadership points and open to criticism, certainly.

    End of the world, hardly.

  • UltimaRatioReg

    MI,

    Out of proportion? Not hardly. Federal officials stifling free expression? Kinda serious. A General Officer who indulges? More than kinda. Such is now permissible. What next? Where else will our Federal Government come down on the side of limiting free speech to appease a sworn enemy of this nation? And make no mistake, when General Dempsey speaks in that uniform, he is the Government. To assert otherwise is simply incorrect as well as foolishly naive.

    Our freedoms need to be fiercely guarded, from our enemies as well as our government. The dispensing of due process because it is inconvenient or seemingly impractical is the most dangerous of precedent that can be set. It builds a government that relies on the benevolence of those in charge instead of the rule of law to safeguard our liberty. That you refuse to see that is reflected in the softsoaping with which you treat the seriousness of Dempsey’s actions. Which are in no way similar to those of General Amos, despite your attempt to equate them.

    End of the world? No. End of the Republic? Down this road a ways.

  • Mittleschmerz

    URR – instead of invective, draw the picture. Instead of just making a statement, make a case.

    How does “It’s not helpful to me” when talking about a group of people who are no longer under his command lead to the end of the Republic or equate to a stifling of free expression. If the Chairman (or General Dempsey, a rank you apparently refuse to use) was stifling free expression, how could he if he has no authority over those you think he sought to silence.

    As for General Amos. Tell the 20 victims of sexual assault who had their cases thrown into turmoil because of his unguarded words that the Chairman’s words are more serious.

    You’re a smart guy. Show it instead of just making statements without supporting fact.

  • UltimaRatioReg

    You really are trying your best not to get it, aren’t you?

    Read my first comments, above. And then, apparently, you should read it again. That you ignore it does not mean the case isn’t made. It has been, by myself and others, and not just here. As for verifying or contradicting my above statements regarding free expression and the First Amendment, once again, do your own homework.

    Your hyperbole with General Amos is intentional obfuscation.

    Your argument smacks of being that of an apologist for General Dempsey rather than a serious discussion of the Constitutional and professional impact of his actions. Which surprises me not at all, because you did the same thing previously with Dempsey and time and again with Mullen.

  • Mittleschmerz

    Admiral Mullen? No, you confuse me with someone else. Admiral Harvey, however, is another officer you undeservedly maligned.

    Communication takes two…if I repeatedly don’t understand what you wrote, then perhaps it’s my comprehension. Or it’s your writing. Continuously refuting the idea that it could be your presentation does not de facto make it my comprehension problem.

    If I get time, I will reread your comments…but I doubt I will see any “fact” but instead your usual “opinion presented as unassailable fact”. I just don’t see the threat to the Constitution you do. I do see an officer who has either made a mistake and doesn’t realize it, or is not apolitical. Neither speak well of him as flaws, but they are certainly nowhere near the level of calling for his resignation.

    I am no apologist for General Dempsey (though you seem to be for General Amos). I am, however, attacking the scorn you continue to heap on him as unprofessional and unnecessary.

  • UltimaRatioReg

    MI, skip it. Your game of intentional obtuseness is tiresome.

  • RickWilmes

    It is not just the Chairman attacking individual rights and our freedom of speech.

    “Today, the Los Angeles Times published an op-ed by Sarah Chayes, former special assistant to the chairman of the Joint Chiefs of Staff, condemning the film widely blamed for the current wave of Islamist violence across much of the Muslim world, and arguing that the film does not warrant First Amendment protection.”

    http://www.theobjectivestandard.com/blog/index.php/2012/09/la-times-writer-calls-for-end-of-first-amendment/

  • http://blog.usni.org M. Ittleschmerz

    Here’s her punch line:

    The point here is not to excuse the terrible acts perpetrated by committed extremists and others around the world in reaction to the video, or to condone physical violence as a response to words — any kind of words. The point is to emphasize that U.S. law makes a distinction between speech that is simply offensive and speech that is deliberately tailored to put lives and property at immediate risk. Especially in the heightened volatility of today’s Middle East, such provocation is certainly irresponsible — and reveals an ironic alliance of convenience between Christian extremists and the Islamist extremists they claim to hate.

    BT BT

    So…the solution seems clear. Next urine Christ or feces Mary good Christians need to riot so that the art displays are no longer considered Free Speech…because that is the example that Sarah Chayes seems to be accepting.

    And, here’s the actual article instead or Rick’s hit piece on it. Read it objectively, if you can.

    http://www.latimes.com/news/opinion/commentary/la-oe-chayes-innocence-of-muslims-first-amendment-20120918,0,3112718.story

  • UltimaRatioReg

    Lewis’ interpretation of the 1st Amendment is out and out bullsh*t. To claim that any criticism of Islam fits under the rubric of inciting speech is completely false. To restrict the free expression of Americans because Muslims will take offense and riot and murder is to adopt the despicable and destructive “dhimmitude” which is so common among many of those in office and elsewhere today. If that is now the standard, then there is no limit to such when dealing with those not just in the US, but around the world, who may be offended.

    Maybe the Jewish population of Skokie should have murdered and destroyed when the Nazis won the right to march. And yes, maybe the Christians should burn Mosques and Synagogues when they see their religious symbols desecrated. Maybe atheists should burn everybody’s places of worship the next time the President takes the oath of office and says “So help me God”. Of course, we should be objective about that, too.

    No, no threat to our Constitutional rights here. Get a grip.

  • RickWilmes

    “And, here’s the actual article instead or Rick’s hit piece on it. Read it objectively, if you can.”

    MI,

    I have to agree with SecretSquid above.

    “M.I., your confusion on this issue is astonishing.”

    My so called “hit piece” identifies the fundamental issue at stake here.

    “Regardless of the content or the quality of the speech in question, speech as such does not cause, and is not responsible for, the irrational violence of others.”

    Whether it is a speech or a film in question, if anything, the Chairman should know such a fact.

  • Sperrwaffe

    Wow, what a dispute.
    I am having problems following the discussion. If you can call it a discussion.
    So heated up. Why so? Is this the fight in the trenches because of the coming Election? Sorry, but an outsider like me might get that impression.

    Anyway, I can understand the problem. It’s all about when could be the right place and time to “regulate” the subjective misbehaviour, expressions or undergoings which lead to videos like the one currentliy involved.
    Well, there will never be the “right” time. I will always lead to heated debates about freedom of speech.
    And that is alright. Your country has a historical obligation to independency. This is lived and preserved. Independency of the Country, Indepenency of the federal states, Independency of the people, Independency of the single person. Often mixed with a distinctive pride about independency.
    And this pride is currently influencing the discurse = “What did you do? Not in my house!”

    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.
    But it is certainly not a clash of cultures, the downfall of democracy or the destruction of Constitutional Rights. The US has been through much harder stuff.
    Because what would be the alternative for democracy?
    My wife knows some, having been born in the GDR. And also my parents in law. They could tell you some.
    You are not even on the edge towards end of democracy.

    Think, press, speak.

    Excursus:
    My personal view about this video, and the repeating insults of extremists groups trying to challenge us and others is rather harsh:
    Someone should kick their a** until they laugh and then because they laugh. To get some sanity into them. But they don’t want sanity. They want to burn, they want to provoke, because they know that there are groups which cannot react otherwise.
    Matt has stated that very clear.
    And on the other hand they can misuse the rights given to them. Because they know the debate which will follow in your country. They use you.
    End of excursus

    And yes, I may miss a lot of points and details, as always. However, through the last discussions around Gen. Dempsey I am really having a hard time to follow the different point of views.
    To much emotions…

  • UltimaRatioReg

    Sperrwaffe,

    The original premise was that General Dempsey, through acting in his official capacity as a military officer, willfully inserted himself in the middle of the debate, after decrying “politicising” of the uniform.

    Your other point, that representatives of the Government condemning free speech of a private citizen is not a loss of rights or the “edge toward the end of democracy”. It is precisely that.

  • Sperrwaffe

    URR
    I see your first point. But why this overheated discussion?

    and your second point which is mainy your oppionion, not a fact:
    That you prefer to let idiots threaten you by covering under the right freedom of speech. And nobody is allowed to intervene, even if he means well by doing so. ;)

    Sorry mate, just teasing a little bit too hard. I apologize!!

    No seriously, how about this:
    We wait some time and see what happens to democracy in the US and over here.
    Let’s say two years from now. Then we all (the usual suspects of this discussion) get together and see what’s behind the crystal ball predictions and instead see what really happened.
    And discuss who was right and why, with “ein paar Glaeser Bier” from my favourite brewery of Sonthofen.

  • UltimaRatioReg

    “That you prefer to let idiots threaten you by covering under the right freedom of speech. And nobody is allowed to intervene, even if he means well by doing so.”

    I know you are teasing, but YES, that is precisely the point. Because in the end, I have a lot less to fear from private citizens who may say something I disagree strongly with than a government who “protects” me from that free speech. Why?

    The very same people who rallied to vociferously defend a Crucifix in a jar of urine as sacrosanct free speech that should even be funded by taxpayer money are precisely the ones telling us that offending Islam, whatever that means (and Islamists will be happy to tell us) is somehow NOT protected free speech.

    “…endowed by our CREATOR with certain unalienable rights…” Not by the government, or the UN, or the Muslim Brotherhood.

    The discussion is hardly overheated. It is a discussion of the most fundamental duties and responsibilities of a Military Officer, in which the most senior of them has failed disgracefully.

  • Sperrwaffe

    URR
    I take this as a YES to my proposal ;)

  • UltimaRatioReg

    A glass of German beer? Of course I say YES to your proposal!!! :)

  • Matt

    Well we get a little emotional when our leaders lose wars and the leadership blames the enemy’s attacks on our own instead of the enemy and their barbaric Blasphemy Law from the Dark Ages.

    I do believe history will prove the attacks on 9/11/12 and the multiple violent protests at US Embassies all over the ME, N. Africa and SE Asia were coordinated. Al Qaeda’s stategy is to use publicity stunts basicly. I read about an Al Qaeda affiliate (MILF) in the Philippines who publicly rejected an Al Qaeda request to launch an attack at the same time of all of this. The Cairo Embassy stunt/protest even had Zawaharry’s brother in attendance as they waved AQ flags and chanted “we are all Usama”. Also the Camp Bastion attack. Every attack and protest were in countries with terrorist orgs. linked to AQ or a syndicate. The 9/11 attacks and the 9/11 protests fit the modus operandi of AQ and the various affiliates. This was AQ’s “Tet Offensive”. Our media, military and political leadership all took the bait. Instead of focusing their wrath on the enemy and their wicked Blasphemy Law they focused on one of our own citizens whose “blasphemous” video was used as an excuse to launch a 9/11 terror/publicity offensive.

    Losers get scorned for good reason. But I’ll have a beer with them anytime as long as they are “open minded” to confronting the enemy and their various barbaric Sharia laws.

  • Diogenes of NJ

    @URR, @Sperrwaffe –

    The “beer summit” thing has already been done. Now if you were to put some schnapps on the table, someting might get accomplished.

    – Kyon

  • UltimaRatioReg

    The only thing I can hope to accomplish at a “beer summit” with German beer, is to drink German beer! :)

  • SecretSquid

    M.I,

    For all of your concern over wardroom table manners, you still have not addressed the fundamental objections to your original post. Your responses to commenters so far has been evasive, dismissive, or distractive, but you have not addressed the substance of readers’ objections.

    You have not refuted the argument, convincingly made by multiple readers, that the Chairman exceeded his authority in calling a private citizen to discourage him from engaging in Constitutionally protected religious free speech.

    You suggest this intrusion by the Chairman in civilian matters might be justified or at least excused on the inexplicable grounds that he was either exercising his personal free speech rights or that he was somehow traumatized by public criticism of the President. As I have previously argued, these are hardly valid justifications for the Chairman’s conduct. In fact, I suggest his obligations are exactly the opposite — rather than condemning or discouraging this religious expression, Gen. Dempsey has a duty to affirmatively and unapologetically defend the Constitutional rights of Americans.

    Then you deny or at least minimize the coercive nature of Gen. Dempsey’s request that Rev. Terry Jones refrain from promoting the IoM video.

    Then you offer up a red herring by citing legal distinctions between speech that is merely offensive vs. speech of the “clear and present danger” variety. This distinction is irrelevant here for two reasons. First, the posting of the “Innocence of Muslims” trailer on YouTube is unlikely to fit within the narrow exceptions to First Amendment protections for incitement, since there is a wide range of potential religious speech that Muslims consider to be offensive and since posting an insulting video on YouTube lacks the physical proximity of shouting an insult into the face of an angry demonstrator. Second, even assuming the video could be banned under US law as inciteful speech, enforcement of that prohibition upon US civilians would not fall to the Defense Department.

    In another detour, you suggest a parallel between Muslim rioting over the IoM video with Christian objections to Andres Serrano’s “Piss Christ.” In making this flawed comparison, you fail to recognize the essential difference that Serrano’s anti-Christian “art” was financed by a US taxpayer-funded NEA grant, while IoM appears to be entirely privately funded. Christian objections to Serrano were not a case for censorship so much as they were a case against the use of public funds to support religiously offensive art.

    Then you attempt to minimize the seriousness of Gen. Dempsey’s transgressions, leaving readers justifiably wondering whether you are willing to stipulate guilt and are ready to move on to sentencing.

    You seem to skate across the various arguments at issue here without actually settling them and ultimately arriving upon a conclusion. You acknowledge the Chairman’s “undue influence” problem, even if “undue influence” doesn’t necessarily apply to civilians. You admit the appearance of partisanship when the Chairman criticizes political speech by the OPSEC veterans, but not political speech that is favorable to the current administration. You even acknowledge the problem of careerism (“what my boss finds interesting, I find fascinating”). Yet you still seem more interested in fumbling for loopholes to explain away the Chairman’s conduct and attacking his critics than in following the argument to its logical conclusion.

    Sometimes things really are simple. Command requires moral clarity. The Chairman swore the same oath we all swear — an oath to support and defend the Constitution against all enemies foreign and domestic. He did not swear an oath to support and defend the President. This oath leaves no room for compromising basic American freedoms to appease America’s enemies.

  • Mittleschmerz

    OK SS…point for point…I’m sorry that I am not being clear enough for you. I will try and do better.

    “For all of your concern over wardroom table manners, you still have not addressed the fundamental objections to your original post. Your responses to commenters so far has been evasive, dismissive, or distractive, but you have not addressed the substance of readers’ objections.”

    I have not responded to reader’s objections because I do not believe that they have substance. I drew what I believed was a clear line that General Dempsey could be seen as exerting Undue Command Influence in both his comments about SOFREP (or whatever they are called) and his call to Pastor Jones.

    “You have not refuted the argument, convincingly made by multiple readers, that the Chairman exceeded his authority in calling a private citizen to discourage him from engaging in Constitutionally protected religious free speech. ”

    How can someone exceed authority when he has no authority over someone? Pastor Jones is not subject to UCMJ or General Dempsey’s orders. And General Dempsey did not order Pastor Jones to do anything. If you think General Dempsey can coerce Pastor Jones, I think you underestimate the Pastor. Do I think the General should have called? No. Never said he should have. And since I draw the UCI line, I think it’s clear that I disagree with the call. But, I do not thing the Chairman should be vilified, insulted, or his resignation called for, which some commenters have repeatedly done.

    “You suggest this intrusion by the Chairman in civilian matters might be justified or at least excused on the inexplicable grounds that he was either exercising his personal free speech rights or that he was somehow traumatized by public criticism of the President. As I have previously argued, these are hardly valid justifications for the Chairman’s conduct. In fact, I suggest his obligations are exactly the opposite — rather than condemning or discouraging this religious expression, Gen. Dempsey has a duty to affirmatively and unapologetically defend the Constitutional rights of Americans. ”

    You used the “traumatize” phrase to dismiss my contention that the Chairman was bothered by the attacks on the President. In doing do, you mix up the commentary on SOFREP and Pastor Jones. I was specifically writing about and referencing the SOFREP actions.

    “Then you deny or at least minimize the coercive nature of Gen. Dempsey’s request that Rev. Terry Jones refrain from promoting the IoM video. ”

    Because, as I mentioned above, I do not see coercion there. You are free to disagree, that’s the neat thing about opinions. Calling the action coercive does not in and of itself make it so.

    “Then you offer up a red herring by citing legal distinctions between speech that is merely offensive vs. speech of the “clear and present danger” variety. This distinction is irrelevant here for two reasons. First, the posting of the “Innocence of Muslims” trailer on YouTube is unlikely to fit within the narrow exceptions to First Amendment protections for incitement, since there is a wide range of potential religious speech that Muslims consider to be offensive and since posting an insulting video on YouTube lacks the physical proximity of shouting an insult into the face of an angry demonstrator. Second, even assuming the video could be banned under US law as inciteful speech, enforcement of that prohibition upon US civilians would not fall to the Defense Department. ”

    You totally misread what I wrote (as did URR). I did not find the argument compelling. In turning the author’s argument around I was making the point that for Christians to be able to condemn what they see as blasphemous they should riot, because (in the article author’s opinion) speech that leads to violence is grounds for a suppression of speech. Other than that I don’t know what you are talking about in this paragraph or the one following.

    “In another detour, you suggest a parallel between Muslim rioting over the IoM video with Christian objections to Andres Serrano’s “Piss Christ.” In making this flawed comparison, you fail to recognize the essential difference that Serrano’s anti-Christian “art” was financed by a US taxpayer-funded NEA grant, while IoM appears to be entirely privately funded. Christian objections to Serrano were not a case for censorship so much as they were a case against the use of public funds to support religiously offensive art. ”

    “Then you attempt to minimize the seriousness of Gen. Dempsey’s transgressions, leaving readers justifiably wondering whether you are willing to stipulate guilt and are ready to move on to sentencing. ”

    I have no idea what you are talking about. I am disappointed that the Chairman has chosen to appear as a political hack, lackey, or partisan general…however you want to call it. But I do not and am not calling for his resignation over his SOFREP comments or his call to Pastor Jones.

    “You seem to skate across the various arguments at issue here without actually settling them and ultimately arriving upon a conclusion. You acknowledge the Chairman’s “undue influence” problem, even if “undue influence” doesn’t necessarily apply to civilians. You admit the appearance of partisanship when the Chairman criticizes political speech by the OPSEC veterans, but not political speech that is favorable to the current administration. You even acknowledge the problem of careerism (“what my boss finds interesting, I find fascinating”). Yet you still seem more interested in fumbling for loopholes to explain away the Chairman’s conduct and attacking his critics than in following the argument to its logical conclusion. ”

    OK, so somehow what I intended to be read was read. Clearly. So is this really an issue that I must agree with you and acknowledge your point so that you can then say I write clearly and you understand my point?

    “Sometimes things really are simple. Command requires moral clarity. The Chairman swore the same oath we all swear — an oath to support and defend the Constitution against all enemies foreign and domestic. He did not swear an oath to support and defend the President. This oath leaves no room for compromising basic American freedoms to appease America’s enemies.”

    I still don’t see the “compromising basic freedoms” line that has been bandied about. I really don’t. Neither of the groups that were involved are subject to the Chairman’s orders.

    As for Command and moral clarity – my bio is here on the website. I’ve had command so I know what is required. I do not know if you have so I do not know if you understand what is required in the same way I do. Clearly we do not agree on many things. Which should be fine, even though some apparently are more interested in agreement than they are discussion.

  • UltimaRatioReg

    “I still don’t see”

    You could have stopped after those four words.

  • Jeannette Haynie

    It is okay to disagree and not classify those who see things differently as ignorant or moronic. That’s part of what actually makes this country great.

    Personally, I find General Dempsey’s phone call, his comment on the SOFREP issue, and corresponding radio silence on the veterans who spoke at the DNC convention (which, let me head this one off, I have no problem with as they are not currently serving) both surprising and disappointing. And inconsistent, which is arguably dangerous as well.

    I do not, however, see it as nearing the edge of democracy (as Sperwaffe so interestingly points out–great comments, by the way), and I can’t see how any of this justifies calling for the Chairman to resign. He should be held to standards, and M.I. and URR are right to call him out on those standards, but again, that’s part of being Americans. That line is easy to cross, as we can see. But I don’t think it quite qualifies for a resignation.

    Which is what I think M.I. is saying.

    And again, we don’t all have to agree on this.

    What bothered me the most about the entire CJCS-calling-Pastor-Jones thing was how that could actually empower people like the Pastor, and how it makes us as a nation appear weak.

  • http://blog.usni.org M. Ittleschmerz

    @URR – ““I still don’t see”
    You could have stopped after those four words.”

    So all the discussion prior to that was OK for you?

    I’ll say it again – make your case that the actions by the Chairman were coercive, trampled on basic freedoms, and merited the call for his resignation and telling him to “shut the hell up”. Which is basically the middle paragraph that Major Haynie has above.

    URR, you sound like Julianne Moore in her acceptance speech Sunday night. Just because a bunch of people get together and say “yea verily” does not just make it so.

  • Robert_K

    Secret Squidly:

    I think you are stretching things a bit with this assertion:

    “In fact, I suggest his obligations are exactly the opposite — rather than condemning or discouraging this religious expression, Gen. Dempsey has a duty to affirmatively and unapologetically defend the Constitutional rights of Americans.”

    The oath of office you take as a military officer is the exact same one as I take as a civil servant. It has nothing to do with defending the constitutional rights of individual citizens but rather it is a pledge of loyalty to the US and support for the constitutional form of government.

    Here is fact from OPM:

    “As Federal civil servants, we take an oath of office by which we swear to support and defend the Constitution of the United States of America. The Constitution not only establishes our system of government, it actually defines the work role for Federal employees – “to establish Justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty.”

    The history of the Oath for Federal employees can be traced to the Constitution, where Article II includes the specific oath the President takes – to “preserve, protect, and defend the Constitution of the United States.” Article VI requires an oath by all other government officials from all three branches, the military, and the States.

    The wording we use today as Executive Branch employees is now set out in chapter 33 of title 5, United States Code. The wording dates to the Civil War and what was called the Ironclad Test Oath. Starting in 1862, Congress required a two-part oath. The first part, referred to as a “background check,” affirmed that you were not supporting and had not supported the Confederacy. The second part addressed future performance, that is, what you would swear to do in the future. It established a clear, publicly sworn accountability. In 1873, Congress dropped the first part of the Ironclad Test Oath, and in 1884 adopted the wording we use today.”

    No question civil liberties are under attack but not sure we want military officers thinking its their “duty” to defend (or restrict) the free speech rights of individual citizens.

  • UltimaRatioReg

    You lead off your post with a statement about the First Amendment that is factually wrong.

    You refuse to recognize the fact that a representative of the USG (or government at any level) who criticizes and coerces a private citizen with regard to legal free expression is indeed an infringement of his rights under the First Amendment. General Dempsey was acting in his official capacity. Period. That is the “case”, and if you haven’t grasped that, you need to DO YOUR HOMEWORK.

    You also make excuses for Dempsey’s egregious and intentional breach of protocol and office, as if the most senior Officer on the Active List should be given a pass for violating his oath because of his good intentions.

    Then, in the comments, you tell us to read an article written by a far-left NYT columnist, who references as an “expert” another far-left NYT columnist, who tells us that criticism of Islam is suddenly not protected free speech, and you advise us to read the article “objectively”, as if it were written that way.

    Instead, you object to my opinion as a private citizen that Dempsey keep his mouth shut regarding such matters as the free speech of private citizens. Which he should have done. On two notable occasions, at least. So no, you don’t get it.

  • http://blog.usni.org M Ittleschmerz

    Yelling louder doesn’t make you righter.

    And you didn’t express an opinion as a private citizen. You issued the Chairman a directive, as a private citizen who repeatedly uses his military experience and reserve status to bottom line his opinions.

  • http://blog.usni.org M Ittleschmerz

    And, in all seriousness, what case law are you using to support your opinion. I’ve looked, and will continue to look, but can’t find something that supports this idea: “the fact that a representative of the USG (or government at any level) who criticizes and coerces a private citizen with regard to legal free expression is indeed an infringement of his rights under the First Amendment”

    If you want me to just have to look for it on my own, fine. And I will. But don’t bulldog and grouse that “I don’t get it” just because I’m actually asking you to support your factual contentions. If you’re right, and can prove it, I might actually see more of your side, even if I continue to decry the manner in which you made and make your comments.

  • UltimaRatioReg

    I am not yelling, I am typing. But what I type isn’t exactly new legal ground. It is, in fact, quite well-established. A century and a half of court cases say so. Most everyone seems to acknowledge that but you.

    Your other assertion is just silly. My blog post is not personal free expression, but you assert above that the CJCS, acting in his official capacity as an Active officer, was somehow voicing his.

    You have yet to show me where, under Title 10, my free speech is restricted when I am not subject to the UCMJ, but you assert constantly that it is. You don’t seem to be terribly conversant in free speech/free expression cases, yet you also make assertions in that realm. You don’t seem to be much for intellectual rigor.

  • Robert_K

    MI,

    Why limit your research to the first amendment?

    Installation Commanders regularly prohibit individuals from brining personal weapons aboard a military base unless they are registered with the base police and intended to be used for an authorized activity- hunting, skeet shooting, etc… This is clearly a violation of the Second amendment. Shouldn’t I be allowed to bring my H&K to the PX on Black Friday – just in case things get sporty in the TV aisle? I can do it at the Walmart but not on base.

    If a taxpaying citizen wants to tour a ship at naval base X to see how his tax dollars are being spent, the CO’s policy forces him to give up his right to bear arms and leave his weapon outside the base. This policy has been challenged and upheld. Most military folks will say this make sense – why put a crew or asset at risk but it clearly violates the Constitution.

    To a certain degree, a case could be made that General Dempsey did the same thing with the minister – he used his professional judgment and told him to tone it down. He did not call the URR to form up a squad, put on some war paint and go cut out the minister’s tongue and chop off his fingers so he couldn’t send out his message. Was Dempsey wrong – I would say yes in this instance but are there situations where this restriction of Constitutional freedom may be warranted – perhaps – but very, very rarely.

  • UltimaRatioReg

    So, Robert, you equate the entry into a military installation with a call from a government phone by a government representative to influence a private citizen’s free speech. Interesting. Wrong. But interesting.

  • Robert_K

    Yes, repressing the first or second amendment rights of US citizens is equally wrong but in certain, very rare situations, it may be warranted. (respond with Ben Franklin quote here)

  • SecretSquid

    Robert K:

    I’m not suggesting that the military oath (or its federal civil service counterpart) requires the CJCS or other federal officers to defend claims against individual Americans in court.

    I am simply arguing that highly visible senior federal officials have an obligation to uphold the Constitutional rights of Americans in their public speech and actions. At a minimum, they should not make statements that are, as Gen. Dempsey’s clearly have been, intended to chill free speech.

  • UltimaRatioReg

    MI, to claim you have “looked” is a bit far-fetched. There are hundreds of cases, dozens of them as landmark cases, in which a law, rule, statute, or ordinance of the government was determined to result in a de facto restriction of free expression. In each and every case, the substantial cause needed to be established, or the government action was overturned.

    As for persons in civil service, of which Title 10 is part, there are many restrictions on such activities and official commentary to influence free speech or expression of private citizens. The Civil Service Act and the Hatch Act both forbid such activity. In fact the CSA specifically states “…no person in said service as any right to use his official authority or influence to coerce the political action of any person or body”.

    Do your homework. Just once.

  • http://tobeortodo.com J. Scott Shipman

    Of course, Robert K’s point is well-taken. I’ve often found it ironic and a bit duplicitous that the same government founded on proposition of “We the People…” the Constitution and subsequent Amendments, prohibits me for carrying a weapon into a federal facility.

  • UltimaRatioReg

    J Scott,

    With this particular Defense leadership, it gets worse. General Chiarelli was complaining not long ago that the Army didn’t have the right to seize weapons from off-post/base residences as they saw fit. Without so much as a nod to anything resembling due process. (There those words are again.)

    http://xbradtc.wordpress.com/2012/07/27/because-it-is-none-of-your-business-general/

  • 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.

2014 Information Domination Essay Contest