Yes, Markos, you CAN be prosecuted for it

Doing the homework that the online Left was just too outraged to do

By Jeff Emanuel Posted in | Comments (58) / Email this page » / Leave a comment »

America and its institutions have, and are governed by, rules and regulations. For the most part, this is a good thing (despite the laments of Court TV's Catherine Crier that the American people have acquiesced to "deliberate ignorance and passive acceptance of...shackles [due to] the omnipotence of the rule of law"), as clear and known boundaries and limitations are set for acceptable actions, thus (ostensibly) holding us all to the same standard.

Our friend Markos Moulitsas Zuníga, though, doesn't like this fact, and has apparently decided that he is the one who judges not only which rules count, but which rules are actually American. Oh, and to quote him: "[A]nyone that thinks otherwise, quite frankly, is legitimately and objectively un-American." Got it?

“When soldiers appear with ‘Mr. 28%’ (the President), that's not called a ‘protest’ or a ‘pro-war event’...It’s called a ‘formation.’

Kos's particular beef is with the rules and regulations which govern the wear of the military uniform. The government is reportedly considering pressing charges against a group of Iraq veterans who wore their uniforms to a protest, and Kos doesn't like it one bit. He writes about it here, under the grammatically questionable title "Marines investigates Iraq vet for wearing cammos at protest." (Apparently Mr. Zuníga sets his own rules for use of the English language, as well -- and "anyone that thinks otherwise, quite frankly, is legitimately and objectively un-American.")

While I might agree with the national commander of the VFW that "someone...needs to put an end to this matter before it turns into a circus," the fact is, the government is absolutely within its bounds to prosecute each of these individuals, whether Kos thinks these particular rules "legitimately and objectively un-American" or not.

Below the fold, I'll explain why.

Just as there are laws which make it illegal to impersonate a police officer or any other official, there are rules and regulations which prohibit "impersonating" a member of the military by wearing the uniform while not in the service. Whether a person is a former member or not, the rules are the same, and are in place to serve the dual purpose of preventing misidentification of a non-service member as being a servicemember, and of preventing an assumption of military or governmental endorsement for whatever activity the person in question might be attending.

Whether thought to be right, wrong, or "legitimately and objectively un-American" by any individual, these regulations have been in place for decades, and are clearly and consistently laid out in regulatory publications from the U.S. Code, to DoD Directives, to the Regulations and Instructions which govern each individual branch of service.

Let us begin with the U.S. Code (which, for those who do not know, is Federal Law). 10 USC, Subtitle A, Part II, Chapter 45, § 771 says that:

no person except a member of the Army, Navy, Air Force, or Marine Corps, as the case may be, may wear

(1) the uniform, or a distinctive part of the uniform, of the Army, Navy, Air Force, or Marine Corps; or

(2) a uniform any part of which is similar to a distinctive part of the uniform of the Army, Navy, Air Force, or Marine Corps

Clear? If not, 18 USC § 702 spells it out even more nicely, saying:

Whoever, in any place within the jurisdiction of the United States or in the Canal Zone, without authority, wears the uniform or a distinctive part thereof or anything similar to a distinctive part of the uniform of any of the armed forces of the United States, Public Health Service or any auxiliary of such, shall be fined under this title or imprisoned not more than six months, or both.

I think that makes the case pretty succinctly. And, though Kos would doubtless challenge the constitutionality of such an "un-American" rule, he would lose. 18 USC § 702 was upheld by the Supreme Court in the case SCHACHT v. UNITED STATES, 398 U.S. 58, which took place in 1970 - yes, math fans, that was before the eeeevil BushCo shredded the Constitution and ended free speech forever (though Kos, MyDD, and so many others seem to be speaking their mind without reprisal).

From the U.S. Code, let's move on to Department of Defense Instruction 1334.01, which replaced DoD Directive 1334.1 in October 2005. According to the Instruction, "it is DoD policy that":

3.1. The wearing of the uniform by members of the Armed Forces (including retired members and members of Reserve components) is prohibited under any of the following circumstances:
3.1.2. During or in connection with furthering political activities, private employment or commercial interests, when an inference of official sponsorship for the activity or interest may be drawn.

3.1.3. ...when participating in activities such as unofficial public speeches, interviews, picket lines, marches, rallies or any public demonstration, which may imply Service sanction of the cause for which the demonstration or activity is conducted.

That's not all, of course. The DoDI also specifically mentions former members of the service, saying that:

3.2. Former members of the Armed Forces...who served honorably during a declared or undeclared war and whose most recent service was terminated under honorable conditions may wear the uniform in the highest grade held during such war service only on the following occasions and in the course of travel incident thereto:
3.2.1. Military funerals, memorial services, weddings, and inaugurals.

3.2.2. Parades on National or State holidays; or other parades or ceremonies of a patriotic character in which any Active or Reserve United States military unit is taking part.

3.2.3. Wearing of the uniform or any part thereof at any other time or for any other purposes is prohibited.

(emphasis added)

That sounds pretty cut-and-dried to me. Though Kos the Constitutional Scholar hath proclaimed that "Marine Cpl. Adam Kokesh has already been discharged" and, thus, "he has every right enshrined under the Constitution, including those of free speech and peaceful assembly," that is not the issue. As DoD Instruction and U.S. Code alike have affirmed (backed up by the Supreme Court), impersonating a member of the military (or even simply dressing like one with no intent to deceive) is, in fact, illegal.

HOWEVER, Mr. Zuníga has one more question which, given the fact that I feel generous today, I will happily dispose of for him. He asks, "So they'll prosecute me if I wear my Army uniforms to an anti-war protest? Really?"

Why yes, Mr. Kos, they can. Not only would wearing your "uniforms" be illegal under the U.S. Code and in violation of a DoD Instruction, but you would also be violating an Army Regulation. AR 670-1 §30-4, "Wear of the uniform by former members of the Army," states that:

The uniform is authorized for wear only for the following ceremonial occasions, and when traveling to and from the ceremony or function. Uniforms for these occasions are restricted to service and dress uniforms; the BDU and physical fitness uniforms will not be worn.
(1) When attending military funerals, memorial services, weddings, inaugurals, and other occasions of ceremony.

(2) When attending parades on national or state holidays, or other patriotic parades or ceremonies in which any active or reserve United States military unit is taking part. Wear of the Army uniform at any other time, or for any other purpose than stated above, is prohibited.

(emphasis added)

Furthermore, §30-7, "When wear of the uniform is prohibited," says that "The wear of the Army uniform by ARNG, USAR, retired, separated, and civilian personnel is prohibited under the circumstances listed in paragraph 1-10j."

Curious to know what paragraph 1-10j says? Well, here it is:

Wearing Army uniforms is prohibited in the following situations:
(1) In connection with the furtherance of any political or commercial interests, or when engaged in off-duty civilian employment.

(2) When participating in public speeches, interviews, picket lines, marches, rallies, or public demonstrations, except as authorized by competent authority.

(3) When attending any meeting or event that is a function of, or is sponsored by, an extremist organization.

(4) When wearing the uniform would bring discredit upon the Army.

(5) When specifically prohibited by Army regulations.

(emphasis added)

So, to repeat the answer to your question: yes, Kos, you can be prosecuted if you "wear [your] Army uniforms [sic] to an anti-war protest." Don't like it? It's the law.

A counter-argument which was doubtless seen as both astute and effective by the Kossacks who read the story (sorry, I don't wade into the comments there, so I don't have any to quote) was this:

As we've seen time and time again, we see military personnel, in uniform, all the freakin' time as backdrops to Republican pro-war events -- including with Mr. 28% -- and there haven't been any prosecutions of those folks.

Um, Kos, you were in the same military as us, were you not? Whether you like him or not, whether you think that he's "your President" or not, "Mr. 28%" as you call him is the President of the United States, and as such is the Commander in Chief of the U.S. Armed Forces.

Kos, I hate to break it to you, but when soldiers appear with the President, that's not called a "rally," a "protest," or a "pro-war event."

It's called a "formation."

Did you really serve in the same military as the rest of us? If so, then you knew all of this already - and I'll give you a tip of my cap for your successful feigning of stupidity and ignorance for the purpose of getting your readership good and riled up.

Bravo.

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Yes, Markos, you CAN be prosecuted for it 58 Comments (0 topical, 58 editorial, 0 hidden) Post a comment »

But perhaps SPC Moulitsas has a point: would the Army really be so foolish as to court PR disaster by prosecuting the only MLRS battalion E-4 to ever serve as BN S-4, and complete a 20-mile ruck march?

Surely not!

We are but warriors for the working-day.

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We are all heroes, you and Boo and I. Hamsters and rangers everywhere, rejoice!

he was an E-3 when he got out. PFC Zuniga.

what does this mean for all of the people who wear military surplus clothing? If I correctly read the U.S. code 10 USC, Subtitle A, Part II, Chapter 45, § 771 shown in the article then all of the army navy surplus stores should not be selling uniforms, emblems, insignia, etc. What am I missing here?

I think you missed a VERY important point. The individual in question, quoting from the original report, "was photographed in March wearing fatigues — with military insignia removed..."

Is that an official military uniform? The regs say anybody not in the armed forces is prohibited from wearing such a uniform, but I can buy the same thing at any military surplus store so that would sorta shoot a big hole in the argument. Heck, that would mean everyone wearing fatigues is committing a crime! If I can wear it and it's not a crime then it clearly isn't official garb and thus doesn't apply...

Had it been fatigues WITH insignia that would be a different story, but the article clearly states that wasn't the case.

On a slightly different note, if a member of Congress holds a local event and recognizes a constituent for their efforts in Iraq and that individual is in military uniform that IS AGAINST THE LAW. You quoted the passage above. Yet, there are photographs of members of Congress breaking that rule with individuals in full military dress, instead of plain fatigues, in the '06 election and to the best of my knowledge nobody was prosecuted for it.

Kos points out that any number of Presidential addresses barely qualify as anything other than political events but yet he can (does?) order uniformed military members to stand behind him on stage. Thus the argument that if the military isn't prosecuting pro-military events then it shouldn't be going after people at anti-war events. Heck, even the head of the VFW as you pointed out thinks it's going to turn into a circus and open up a can of worms.

Giving Kos the benefit of the doubt, as someone who served in our armed forces, he knows he would be breaking the law, but he sees it being unfairly applied and thus not a fair or just law. I'm pretty sure that's a good argument for violating a law that harms nobody directly.

Kos points out that any number of Presidential addresses barely qualify as anything other than political events but yet he can (does?) order uniformed military members to stand behind him on stage. Thus the argument that if the military isn't prosecuting pro-military events then it shouldn't be going after people at anti-war events.

He neglected to point out that the commander in chief, like every other superior officer in the United States Military, has uniformed military stand around and behind him at all sorts of things that are nothing at all like military functions. Thus the argument that you and the acupuncture king make is sophistic at best, and stupid at worst.

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We are all heroes, you and Boo and I. Hamsters and rangers everywhere, rejoice!

Jeff,

While I understand your angst on this issue, it's a pretty weak one to get excited about, and a rather dangerous one to go around prosecuting people over wear of uniform parts.

At the last Veterans day parade I saw lots of guys and gals proudly wearing uniforms from their days in service (the parts that still fit that is). You want to start going after them too or just those that you disagree with on political points of view? Who's to decide, who's to enforce?

Wearing of uniforms for those of us who have served at a political rally has an old history, some I agree with some I don't but it's not that unusual through the history of this country. Do some research on the "bonus army" back in the '20's as a start, why even take a look at pictures from the 70's of John F'n Kerry as published in Winter Soldier.

As to the Governement pressing charges, that would be a very dumb move for a lot of the very obvious reasons.

_______________________________
Fred...Fred...Fred..!

1. Don't blame Jeff for responding to Kos getting angry.

2. If you read Jeff's post, it should be clear that the Veterans Day parade example is a red herring, as that is permitted.

3. I think the bonus army is not really an example of a protest that ended well. Nor is Kerry an example of responsible protest. Military vets can protest as vets, but the military has exercised for decades the right to exclusive control of the uniform.

"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill

Because he's referring to the Marines (as in the institution of our military) as opposed to the marines (those two soldiers over there) his grammar is correct. The Marines is a part of our military. It sounds wrong, but because The Marines is the name of a group, and because not all the marines are individually investigating this soldier, his grammar is strangely correct.

However, you are right on every other point. Nice entry.

...Corps" is the institution.

You can question a lot of things I say, Terryus, but grammar isn't one of 'em ;-)

"The Few. The Proud. The [....]"

I think it can be used to refer to the individuals _and_ the institution.

Just a quibble though. Not questioning the substance of the post. No need to get upset.

“Republicans believe every day is the Fourth of July, but the Democrats believe every day is April 15.”
-Ronald Reagan

His usage is awkward.

“Republicans believe every day is the Fourth of July, but the Democrats believe every day is April 15.”
-Ronald Reagan

"The Few...The Marines" Few = plural. Marines = plural.

When we say Marines, we refer to the people of the Marine Corps.

Not that this is the most important part of Jeff's post, but sloppy grammar, spelling and incorrect homophones drive me nuts.

I meant what I said and I said what I meant. An elephant's faithful 100 percent.

just making the case for the grammar phenomenologists :)

“Republicans believe every day is the Fourth of July, but the Democrats believe every day is April 15.”
-Ronald Reagan

"Marines" are individuals who are members of the Marine Corps.

The organization is "The Marine Corps", "United States Marines", or simply "The Corps".
____
CongressCritter™: Never have so few felt like they were owed so much by so many for so little.

for the polite, yet subtle and nuanced manner in which you help others save face.

“Republicans believe every day is the Fourth of July, but the Democrats believe every day is April 15.”
-Ronald Reagan

Have not, traditionally, been things Kos needed to feign.

"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill

...and I will tell you one aspect of this that he did not mention, and the reason why this is so important.

Remember everyone, especially the Kossack's, having a fit over The Geneva Convention and the treatment over the prisoners of war? I clearly remember people screaming and standing on their heads about it.

I believe that is article 13:
(though the whole document is very definitive about prisoners)

Article 13

Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.

Measures of reprisal against prisoners of war are prohibited.

Well there is this nifty provision in there that says something about who armed combatants are, and who they are not. In fact it even talks about "distinctive" military uniforms to differentiate from combatants and non-combatants.

I believe that is article 4:
(in this case: article 4, section 2 (b)

Article 4

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;
[Ed. for the intellectually challenged - this is a uniform!]

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

B. The following shall likewise be treated as prisoners of war under the present Convention:

1. Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.

2. The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.

How come one aspect of the Geneva Convention is so holy and inviolate, but another part can be poo pooed like it is toilet paper?

That is why it is a big deal!

"Wubbies World" - MSgt, U.S. Air Force (Retired): "Call to Me and I will answer you, and I will tell you great and mighty things, which you do not know." -Jer 33:3-

Did the United States recently become a combat zone in which we need to differentiate between soldiers and civilians?

This seems like a really silly thing to be arguing over and the Feds will only make themselves look foolish if they push the prosecution.

There are those who look at things the way they are, and ask why ... I dream of things that never were and ask why not. - Robert Kennedy

degree by rules like this, and while the US isn't currently a combat zone, there is nothing that says it won't ever be.

Better to have rules in place on when, where, and why a uniform can be worn, and teach service members those rules, than to come up with them on the fly, when somebody invades.

There is good reason for the military to want to control the wearing of the uniform-I think issues of Geneva are one of them, and I also think the rules are inspired to prevent the appearance of tacit approval or whatever event a military member may be wearing their uniform to.

But people wear military uniforms ALL THE TIME. I had always been taught that as long as you weren't earing any insignia you were ok.

Regardless, this is going to look very bad for the Bush Administration if actual prosecutions occur.

There are those who look at things the way they are, and ask why ... I dream of things that never were and ask why not. - Robert Kennedy

"All or part of a military uniform." It's not ambiguous, and "but other people do it!" doesn't make it legal.

Do you want to be a nation of laws, or not? Easy question. It's yes or no. No equivocating, please.

You can stand behind the law and justify their prosecution, if you like.

We are a nation of laws that also understands that not all laws should be enforced 100% of the time. Intent has to have some bearing, no?

There are those who look at things the way they are, and ask why ... I dream of things that never were and ask why not. - Robert Kennedy

I may not even agree with this potential prosecution in the least. The point of the story - and thus the point that I'm consistently defending - is the fact that the government is well within its bounds to prosecute such acts, as they are violations of the U.S. Code, among other laws and regulations.

That's it, and that's all.

I didn't mean to imply that you did.

But just because the law is on their side doesn't make it a good thing to do.

There are those who look at things the way they are, and ask why ... I dream of things that never were and ask why not. - Robert Kennedy

... as the US is not a combat zone, anyone can wear the US military uniform. gotcha...

I am glad the Fort Dix 6 didn't have to worry about wearing the uniform in a non-combat zone thing.

"Wubbies World" - MSgt, U.S. Air Force (Retired): "Call to Me and I will answer you, and I will tell you great and mighty things, which you do not know." -Jer 33:3-

This wonderful individual.... ummmm Jessie McBeth

The Geneva Convention may be a nice political tool for you to play with when you want to score political points, but cherry picking the parts you like and don't like, don't cut it.

"Wubbies World" - MSgt, U.S. Air Force (Retired): "Call to Me and I will answer you, and I will tell you great and mighty things, which you do not know." -Jer 33:3-

...screaming death to America because we were torturing Muslim's? I know that we weren't, but with people "pretending" to be military members saying they murdered and tortured Muslims validated their claims.

Pretending, or even having the appearance of associating with the US military, no matter how "good your intentions" is still a very bad thing!

"Wubbies World" - MSgt, U.S. Air Force (Retired): "Call to Me and I will answer you, and I will tell you great and mighty things, which you do not know." -Jer 33:3-

The Law of Armed Conflict

I bumped this part to the top because this is the heart of Erik's and my argument:

Distinction. Distinction means discriminating between lawful combatant targets and noncombatant targets such as civilians, civilian property, POWs, and wounded personnel who are out of combat. The central idea of distinction is to only engage valid military targets. An indiscriminate attack is one that strikes military objectives and civilians or civilian objects without distinction. Distinction requires defenders to separate military objects from civilian objects to the maximum extent feasible.

Do you understand "distinction"?

Here is why it is IMPORTANT:

The LOAC arises from a desire among civilized nations to prevent unnecessary suffering and destruction while not impeding the effective waging of war. A part of public international law, LOAC regulates the conduct of armed hostilities. It also aims to protect civilians, prisoners of war, the wounded, sick, and shipwrecked. LOAC applies to international armed conflicts and in the conduct of military operations and related activities in armed conflict, however such conflicts are characterized

Please keep this in mind:

International and Domestic Law

LOAC comes from both customary international law and treaties. Customary international law, based on practice that nations have come to accept as legally required, establishes the traditional rules that govern the conduct of military operations in armed conflict. Article VI of the US Constitution states that treaty obligations of the United States are the “supreme law of the land,” and the US Supreme Court has held that international law, to include custom, are part of US law. This means that treaties and agreements the United States enters into enjoy equal status as laws passed by Congress and signed by the President. Therefore, all persons subject to US law must observe the United States’ LOAC obligations. In particular, military personnel must consider LOAC to plan and execute operations and must obey LOAC in combat. Those who violate LOAC may be held criminally liable for war crimes and court-martialed under the Uniform Code of Military Justice (UCMJ).

"Wubbies World" - MSgt, U.S. Air Force (Retired): "Call to Me and I will answer you, and I will tell you great and mighty things, which you do not know." -Jer 33:3-

Who are the lawful combat targets in the United States?

The rules you cite are referring to people conducting military operations. Are you suggesting these people were conducting military operations?

If you think that this is something that people SHOULD be prosecuted for, that's your choice I guess.

So when people go to play paintball and they put on their old BDUs should they be arrested?

I really have no idea why you bolded that one sentence in your last cite. These people were not engaged in armed conflict.

There are those who look at things the way they are, and ask why ... I dream of things that never were and ask why not. - Robert Kennedy

...the reason why we have the US laws specified above on the wearing of uniforms listed by Erik in the ORIGINAL post above.

In your world, you may think it is okay to wear the military uniform of a nation "outside" of a "declared" combat zone, but the international treaties were not written for inside the United States. Have you ever gone to countries like Columbia were there is a little group called FARC? A lot of countries kinda have little groups like that. We have our own nut ball militias here playing war to protect their rights out in the weeds too (though they are not as big of a problem).

The point is these treaties and our US laws were written to deal with all these situations. To wear the uniform or any uniform that can be construed as "sign seen at a distance" signifies lawful combatant.

US law is written so that we comply with these treaty obligations, and the peaceful wonderful world you live in inside the peaceful wonderful United States is not representational of all the countries around the world.

"Wubbies World" - MSgt, U.S. Air Force (Retired): "Call to Me and I will answer you, and I will tell you great and mighty things, which you do not know." -Jer 33:3-

I am not questioning the legitimacy of the laws. I am questioning the sanity of enforcing these laws in this situation.

There are those who look at things the way they are, and ask why ... I dream of things that never were and ask why not. - Robert Kennedy

...why do we have laws in the first place, and who is the arbiter of which once get enforced and which ones don't get enforced.

That is a valid debate, especially in light of immigration law having the same problem.

"Wubbies World" - MSgt, U.S. Air Force (Retired): "Call to Me and I will answer you, and I will tell you great and mighty things, which you do not know." -Jer 33:3-

the law enforcement agencies. They receive directives from the executive arm of the relevant government.

This is true from the Federal level down to the municipality level.

Jaywalking is against the law in New York City. However if the police were to suddenly start enforcing that particular law New Yorkers would go absolutely nuts. They could remove the law but there is no reason to. It gives the police the OPTION of using the law for some other purpose and they could start enforcing it at any time if they so choose.

There are those who look at things the way they are, and ask why ... I dream of things that never were and ask why not. - Robert Kennedy

The problem with unevenness of enforcement, especially a law with valid reasons for existing, is only more enforcement unfortunately.

The only difference between the guy who wears his old BDU pants while working on his car, or wears his old BDU coat devoid of patches and rank while duck hunting, compared to the anti-war protester is "media exposure". The same can be said for Jessie Macbeth. if he was just telling BS stories to his buddies in the bar, nobody would care. However, once he got himself in the media, it became a very big deal. Then the military had to validate if his war crimes accusations were true and it cost the tax payers money - a lot of money! though the anti-war protester will not warrant an investigation of war crime claims, he does cause problems on the diplomatic front when the video tape is broadcast on El Jazzera.

If there was not media exposer, I doubt there would be a prosecution. That is the difference and the reason, based upon my experience.

"Wubbies World" - MSgt, U.S. Air Force (Retired): "Call to Me and I will answer you, and I will tell you great and mighty things, which you do not know." -Jer 33:3-

The purpose of these laws is very clear and it has nothing to do with mitigating against negative press.

If they prosecute anyone for this it will look really bad. Not only that but it will put the GOP hopefuls in a tight spot. They will either have to back the military and be portrayed as supporting0 political suppression of dissenting voices or if they oppose the prosecutions they will look anti-military. It is a lose-lose for them.

When you act based on politics, don't be surprised when the politics come back to bite you in the rear.

There are those who look at things the way they are, and ask why ... I dream of things that never were and ask why not. - Robert Kennedy

...I agreed with the reason, but based upon my experience, that is the most likely reason. Like I said previously though, the only solution is tougher enforcement. Then the argument gets into costs associated with those prosecutions. Then it gets back into, what prosecutions are worth making.

We can go back and forth on the reasoning. It is not needed with me here. However, I think this gives the most likely explanation for the prosecution.

When I was in the military, there were those who were not fans of the "commander in chief" in the 1990's. Though it was not covered much in the news, there was a series of prosecutions based upon the UCMJ and the article covering "disrespect to a superior officer" to keep the issue in line to proper military discipline. There was even one that involved a retired person and the wearing of his uniform and utterances of disrespect. He was recalled to active duty and prosecuted.

So, thankfully, these things are not a "one sided political affair" with prosecutions. They keep it fairly right down the middle thankfully.

"Wubbies World" - MSgt, U.S. Air Force (Retired): "Call to Me and I will answer you, and I will tell you great and mighty things, which you do not know." -Jer 33:3-

in intent, and there are rules about what cops in uniform can and cannot do.

I think you may be misreading Kos' post. Let's reread the line in question:

"As we've seen time and time again, we see military personnel, in uniform, all the freakin' time as backdrops to Republican pro-war events -- including with Mr. 28% -- and there haven't been any prosecutions of those folks."

You could question "all the freakin' time," certainly. You can make the case for military personnel being a backdrop for political events involving the President.

However, the word "includes" does not mean "exclusively with." There have certainly been incidents in which active duty members of the military appeared in uniform at partisan political events without the President; c.f. Sgt. Brandon Forsyth's appearance at the Larimer County GOP Lincoln Day Dinner.

Kos isn't just talking about the President. I'm not sure how you missed the meaning of the word "including," but there it is.

Personally, I'd say the right thing to do would be to prosecute both of 'em. As has been pointed out, it's a dangerous trend.

determination could still be up for debate on this.

In comments at this blog http://www.truthdig.com/eartotheground/item/20060306_troops_props_gop/ (sorry I don't know how to imbed links)

Is a newspaper article published in the Coloradoan which appears to no longer be internet accessible, but was published on March 9, 2007

The uniformed troops who appeared at the Larimer County Republican Party’s Lincoln Day Dinner last weekend did not violate military code, said a spokeswoman for the Marine Corps Headquarters’ public affairs office.

Organizations from both parties have been asking military members returning from Iraq and Afghanistan to attend their events to be honored, and the Marine Corps will turn down those requests if the troops are expected to speak, act in an official capacity to assist with the event or endorse a party or candidate, the spokeswoman said.

Strictly being honored at an event, however, is not against regulations, she said.

And I think you may make a fair debate on whether attending a political event to be honored only should be covered under the law, it is pretty hard to say attending a protest rally is similar.

Good point! But I'd hate to be the one who has to judge intent.

However, I think the spokeswoman was simply wrong in the quote above.

Here's the relevant code.

4. POLICY
It is DoD policy to encourage members of the Armed Forces (hereafter referred to as "members") to carry out the obligations of citizenship. While on active duty, however,
members are prohibited from engaging in certain political activities. The following DoD policy shall apply:
4.1. General
4.1.1. A member on active duty may:
4.1.1.1. Register, vote, and express his or her personal opinion on political candidates and issues, but not as a representative of the Armed Forces.
4.1.1.2. Make monetary contributions to a political organization.
4.1.1.3. Attend partisan and nonpartisan political meetings, rallies, or conventions as a spectator when not in uniform.
4.1.2. A member on active duty shall not:
4.1.2.1. Use his or her official authority or influence for interfering with an election; affecting the course or outcome of an election; soliciting votes for a particular candidate or issue; or requiring or soliciting political contributions from others.
4.1.2.2. Be a candidate for, hold, or exercise the functions of civil office except as authorized in paragraphs 4.2. and 4.3., below.
4.1.2.3. Participate in partisan political management, campaigns, or conventions (unless attending a convention as a spectator when not in uniform).

So yeah... again, it's tricky, right? Is the Lincoln Day Dinner a partisan event, or is it an event that happens to be thrown by Republicans? I've never been, so you know, I don't know.

The other truth is that it's not entirely relevant to the question of ex-military personnel -- the original comparison between the protest event and stuff like the event we're discussing isn't entirely valid.

the Corps apparently does allow soldiers to attend events in uniform where they are being honored-is there room for debate on whether that allowance meets the standard-sure-there is a lot of room for debate, but it appears that the Corps investigated this instance and decided no wrong was done based on the fact that the Marine was being honored, as far as I know the current situation is still under investigation, but it is hard to make the "being honored" argument here.

I just don't think these two instances are really that comparable with each other, although how each was handled under the law is debate worthy, I don't think you can hold them up together as similar instances.

I do think in one of Jeff's posts somewhere he addresses why some prosecutions are made with regard to uniforms or partial uniforms with or without insignia and other aren't, and I think media exposure and purpose are relevant as to why the law isn't followed to the letter in every instance.

Sort of like speeding-almost everyone does it, but not everyone gets a ticket? Why? Because there are a finite number of officers with a finite amount of time, therefore they triage the speeders, and tend to write tickets for those who appear to be causing the most harm (ie the guy going 80 in a 50 is more like to get pulled over than the guy going 60-even though both were speeding and both broke the letter of the law).

I spent 20 years in the Navy. I do NOT agree with this prosecution. If this is the level that the military is going to stoop to, then there is a crapload of other people they need to prosecute also.

This whole thing is ridiculous.

Did you miss the part where I said:

While I might agree with the national commander of the VFW that "someone...needs to put an end to this matter before it turns into a circus," the fact is, the government is absolutely within its bounds to prosecute each of these individuals

100% true. 100% accurate.

First, they didn't want civilian control of the military, a policy they tried to drum up support for by 'chicken hawking.'

Next, they attempt to inject militarism into their political protests with the wearing of old uniforms.

Finally...

Run like Reagan!

The left screams "torture" and "Geneva Convention" when it serves their purposes to score political points, but ignore it if it doesn't serve their purposes when they are trying to score political points (the protest).

Makes me sick!

"Wubbies World" - MSgt, U.S. Air Force (Retired): "Call to Me and I will answer you, and I will tell you great and mighty things, which you do not know." -Jer 33:3-

Unknot your panties. People who are not still on active duty wear their uniforms all the time. This guy took off all markings. What's next? Do we outlaw the sale of any type of garment that remotely resembles a military uniform?

Why don't you choose a better subject to write on. Like why the Republicans are spineless, and won't stand up to Democrats?

In an above comment, I made note of the differences on the examples you are giving as justification.

The problem with unevenness of enforcement, especially a law with valid reasons for existing, is only more enforcement unfortunately.

The only difference between the guy who wears his old BDU pants while working on his car, or wears his old BDU coat devoid of patches and rank while duck hunting, compared to the anti-war protester is "media exposure". The same can be said for Jessie Macbeth. if he was just telling BS stories to his buddies in the bar, nobody would care. However, once he got himself in the media, it became a very big deal. Then the military had to validate if his war crimes accusations were true and it cost the tax payers money - a lot of money! though the anti-war protester will not warrant an investigation of war crime claims, he does cause problems on the diplomatic front when the video tape is broadcast on El Jazzera.

If there was not media exposer, I doubt there would be a prosecution. That is the difference and the reason, based upon my experience.

It still doesn't excuse selective use of the Geneva Convention for political purposes!

"Wubbies World" - MSgt, U.S. Air Force (Retired): "Call to Me and I will answer you, and I will tell you great and mighty things, which you do not know." -Jer 33:3-

"Wubbies World" - MSgt, U.S. Air Force (Retired): "Call to Me and I will answer you, and I will tell you great and mighty things, which you do not know." -Jer 33:3-

The left whines and throws tantrums because the President keeps appearing before the troops and getting shown support. But if he didn't do so, what would they say? That he was hiding from them?

They'd whine and throw a fit either way.

Run like Reagan!

First, I agree that soldiers, even those in the IRR, should receive appropriate punishment if they violate regulations. Also, the reporting of the possible punishment these Marines might receive seems overblown. The rules for administrative discharge from the Army Reserve, for example, are pretty clear, in particular that condition of service is based on the whole period of service (all 8 years) and that a general discharge should be for a pattern of poor behavior or poor performance. Although he is not in the Army Reserve, since Mr. Kokesh received an honorable separation from active duty, it seems hard to believe, based on the reported facts, that
his condition of service upon discharge would be anything other than honorable, even assuming his Article 15 results in an involuntary discharge.

On the other hand, I'm not sure your interpretation of the law is quite correct. The paragraphs you cited in both Title 10 and 18 say it is illegal to wear "the uniform" or "distinctive parts" of the uniform without proper authorization. My understanding is that "the uniform" means the entire uniform, according to uniform regulations, and including insignia, rank, ribbons, etc. "Distinctive parts" of the uniform are those that show affiliation with the service (insignia, rank, ribbons, unit insignia, badges, even buttons with "US Army" on them). Both the Army and the Dept. of Health and Human Services (covered under Title 18) have clear guidance on what constitutes a "distinctive" part of the uniform, namely not fatigues. Surely the other services do as well. This seems to suggest that Mr. Kokesh did not break the (Federal) law, but will have an Article 15 hearing for violating DOD regulations. Civilians who wore fatigues stripped of insignia, and even some veterans (eg not retired veterans, who are officially still in the Reserve), appear to be safe from prosecution under the US Code and are not under the jurisdiction of either DOD policy or the UCMJ.

http://news.yahoo.com/s/ap/20070605/ap_on_re_us/military_protest_hearing

Mr. Kokesh was recommended for a general discharge by the separation board.

#1 -- The photo of former Cpl Adam Kokesh at:

http://www.dailykos.com/storyonly/2007/6/2/142332/0502

specifically shows him wearing a "distinctive" USMC uniform item complete with Eagle, Globe, and Anchor -- doesn't get too much more identifiable than that.

#2 -- "The government is reportedly considering pressing charges against a group of Iraq veterans who wore their uniforms to a protest..." This is not what was reported by the AP.

The AP states: "A military panel in Kansas City, Mo., will hold a hearing Monday to decide whether he should be should be discharged from service and, if so, with what type of discharge.
Col. Dave Lapan, a Marine Corps spokesman, said Kokesh is under administrative review because he wore his uniform at a political event, which is prohibited. And, Lapan said, when a senior officer told Kokesh that he violated military regulations, Kokesh used an obscenity and indicated he would not comply with the rules."

Incidentally, the complete AP feed goes on to report that:

"A second Marine who was at the same event was also called about the violation, but told the officer he was unaware he was breaking the rules and said he would not do it again, Lapan said. That Marine has not been called to an administrative hearing."

So, clearly the issue is NOT wearing the uniform (although that is clearly illegal). The issue is that he defiantly disregarded the prohibition, said he would continue to disregard the prohibition when informed of it, and showed disrespect to an officer for good measure.

I did not notice that at all when I followed Jeff's link. Your right, clear as day (once you pointed it out, hehe).

should be "you're right"

their officers brought the violation to their attention, it appears that response of the Marines is what sparked the hearing, not the wearing of the uniform specifically.

Which is actually a pretty fair handling, if these facts prove out in the end.

 
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