Open Thread

What’s on your mind?

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[not guilty]

The prospect that Senator Mark Kelly will be reinstated to active duty in order to impose some kind of military discipline on him for contributing to a video reminding armed services personnel of their sworn duty to disobey illegal orders has led me to think about the interplay between military justice and First Amendment guaranties in regard to military retirees. I have found very little law in this area.

Per Article 2 of the Uniform Code of Military Justice, "[r]etired members of a regular component of the armed forces who are entitled to pay" remain subject to discipline under the UCMJ. 10 U.S.C. § 802(a)(4). The provisions of the UCMJ, however, remain subject to First Amendment guaranties, albeit on a significantly lesser scale than applies to a civilian criminal code. The sweep of First Amendment protection is less comprehensive in the military context, given the different character of the military community and mission. Parker v. Levy, 417 U.S. 733, 758 (1974); United States v. Wilcox, 66 M.J. 442 (C.A.A.F. 2008). https://www.armfor.uscourts.gov/newcaaf/opinions/2008Term/05-0159.pdf

Parker v. Levy, supra, upheld Article 134 of the UCMJ (prohibiting conduct prejudicial to good order and discipline in the armed forces, as well as all conduct of a nature to bring discredit upon the armed forces) against First Amendment facial attack for vagueness and/or overbreadth. SCOTUS there reiterated the point that differences between the military community and the civilian community result in military law that “regulate[s] aspects of the conduct of members of the military which in the civilian sphere are left unregulated.” 417 U.S. at 749. But the Supreme Court upheld
Article 134 against constitutional attack for vagueness and overbreadth in light of the narrowing construction developed in military law through the precedents of the Court of Appeals for the Armed Forces and limitations within the Manual for Courts-Martial itself. Id., at 752-61; Wilcox, slip op. at 12-13.

As SCOTUS opined in Hartman v. Moore, 547 U.S. 250, 256 (2006), official reprisal for protected speech “offends the Constitution because it threatens to inhibit exercise of the protected right,” and the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out Id., at 256, citing Crawford-El v. Britton, 523 U. S. 574, 588, n.10 and 592 (1998),. In the civilian sphere, criminal prosecution without probable cause in retaliation for exercise of First Amendment rights is itself a First Amendment violation. See, Hartman 547 U.S. at 265-266.

If recall to active duty pursuant to 10 U.S.C. § 802(a)(4) is invoked solely in retaliation for Sen. Kelly's exercise of First Amendment protected speech, I have grave doubts that such resort to § 802(a)(4) would itself be constitutional as applied.

[Commenter_XY]

Not to worry NG, Senator Nutjob won't be court-martialed.

[Martinned]

I just had a quick skim through the comments yesterday's "let's not murder people" post, and they were predictably depressing. Even though the OP went out of his way to avoid saying that murder is generally bad, and explicitly didn't avoid on any of the laws that we all specifically agreed in order to achieve some kind of consensus among humankind on the definitions of war crimes, many of the comments were predictably "but Obama!" or "but drug dealers".

Meanwhile, the actual US Regime still does government by trolling, which seems like a swell prospect for the next three years (or more).

https://x.com/PeteHegseth/status/1995291042346852861

[Martinned]

For the record, this is the Rome Statute definition of the relevant war crimes:

Article 8
War crimes
(...)
2. For the purpose of this Statute, “war crimes” means:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
(i) Wilful killing;
(...)
(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
(...)
(vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;
(...)
(xii) Declaring that no quarter will be given;
(...)
(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:
(i) Violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture;
(...)
(d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:
(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
(...)
(x) Declaring that no quarter will be given;
(f) Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.

Sorry for the lengthy blockquote, but the only interesting legal question at issue here is actually which of these regimes, if any, is applicable. Is this an international armed conflict (war between the US and Venezuela), a non-international armed conflict (war between the US and a drug cartel), or not an armed conflict at all? As you can see, this matters for the definition of the offences.

[not guilty]

If only there were a branch of government charged by the United States Constitution with declaring war or not!

[Martinned]

Sort of. The US Congress declaring war on someone or something is neither necessary nor sufficient to make something an (international) armed conflict. But it would certainly help clarify the US view, because if we have to rely on what Trump says the legal nature of this mess would change day by day and hour by hour, depending on his mood and depending on whether he's having a bright day.

[Commenter_XY]

SCOTUS will soon issue a decision on the IEEPA tariff case.

Does POTUS Trump win or lose this case? On what grounds?

I think he wins, b/c the Court can't undo the fiscal aspects of the tariffs w/o severe negative repercussions to the economy. The Court won't sign an economic suicide pact. I am sure they'll use nice legal language, but that is the long and short of it.