Judge Knot

Radford University's Matthew J. Franck has a rejoinder to Judge Andrew P. Napolitano's REASON piece from last week. Seems Franck thinks Napolitano should pay less attention to the powers granted by the Constitution and more attention to uniforms.

Comments

[JJ]

His lead: "I like Fox News Channel. I think it's 'fair and balanced,' just as its slogan claims."

[Warren]

I was hoping we wouldn't be visiting the NRO crowd after Halloween. But they wear those jackboots year round don't they?

Still Napolitano's piece was weak. There are much better critiques to be made against Cuban detainee policy. REASON shouldn't supply the goons over at NRO with strawmen.

[Jean Bart]

Are all the snarky, thoughtless insults neccessary?

Second, are you constitutional rights mitigated by placing on a uniform? It sounds like to me that this person is arguing - or at least impplying - is that a contract was made, and that the contract is what governs here, not the rights of the aforementioned persons as citizens.

BTW, the entire argument that UCMJ is assidiously followed is bullshit; like all laws it is winked and nodded at when neccessary.

[Jean Bart]

Warren,

The best of course is that other governments can treat U.S. service personnel similarly; this will come back to bite the U.S. in the ass someday. BTW, does anyone really think that the majority of the people "Gitmo" are really worthy of detainment? Or is this just "cover our ass" time?

[John]

Anyone who has taken a Civil Procedure class in law school and understands the concept of preclusion will see how weak Napolitano's argument is. And Jean, yes, your constitutional rights are severely decreased when you join the military. One example, your quarters are subject to search by your commander for no cause; it is called a "safety and welfare" inspection. They do it periodically to look for drugs, weapons, etc.

[Jean Bart]

John,

That's because you are in a government facility; the same is true of students in public schools. Can the military come and search your private apartment in the same way?

[John]

Yes they can. Probable cause is not required as long as the purpose of the inspection is to ensure the order and fitness of the unit. If they suspect the soldier of a specific crime, then there must be probable cause.

[Jim Walsh]

"Sleepless libertarians," eh?

I'll respond to that...after I take a nap...

[Anonymous]

BTW, if you want other examples of decreased rights: a soldier cannot say he is homosexual or engage in such acts and he cannot belong to extremist organizations.

[Jean Bart]

John,

Can you give me a specific citation regarding this issue?

[Jean Bart]

So a person has to a "right" to be a homosexual in the U.S.? Interesting.

And as far as I can tell, certain extremist groups are outlawed in the U.S. whether you are a civilian or not. Or can one be a legal member of a terrorist organization?

[Anonymous]

Yes a person has a constitutional right to be a homosexual and engage in homosexual acts in private. Lawrence v. Texas, 123 S. Ct. 2472, 2478 (2003) ("Adults may choose to enter upon a personal relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.")

[Steve in CA]

Wow, Napolitano was so 100% wrong it's just silly. I missed it the first time around, but I'm surprised Reason published something so sloppy. The Military Code of Justice applies to every member of the military, wherever they are stationed. The status of detainees at Guantanamo is totally irrelevant.

[Jean Bart]

Which is a newly minted right; and clearly there are limits to said right - public sexual acts can presumably be proscribed for example. And to be frank, its less of an issue of a loss of a right, and more of a violation of a contract as far as I can tell. You did not lose the right; you purposefully gave it up. There is a difference.

[The Merovingian]

Steve in Ca.,

Well, I believe his rationale is that the UCMJ gets its power ultimately from the Constitution. Just as the Justice Department (such an Orwellian term) does.

[John]

And here is your cite for the prohibition of homosexuality in the military 10 U.S.C Section 654. (Policy Concerning Homosexuality in the Armed Forces). It's too long to copy and paste here.

[The Merovingian]

Well, I wanted a citation regarding the search of private premises.

[Anonymous]

United States v. Jasper, 20 M.J. 112 (C.M.A 1985).

[John]

BTW, while Franck's reasoning is valid, there is a much easier reason that Napolitano is wrong. Issue preclusion (which he calls judicial estoppel: an old term) only applies to subsequent litigation between the same parties. Since the government is prosecuting different parties here, it is an inapplicable doctrine.

[Mark Fox]

Were last year's detainees U.S. citizens?

The Constitution describes how the government can operate, and how citizens' rights are to be protected. Non-citizens must be treated according to the operating rules, but are they accorded the same protections as citizens?

Thanks for helping me learn...

[Brendan Perez]

I'm having the worst time finding United States v. Jasper, 20 M.J. 112 (C.M.A 1985).

Anyone have a link or portal to court cases that contains this one?

[Jeff Smith]

If sleepless libertarians hang out at reason,
where do the sleepy ones go?

Jeff

[Douglas Fletcher]

Boone's Farm.