Friday, December 15, 2006

Let not your hearts be troubled...

To Director Marc Ash, Counselor Bill Simpich, Reporter Sari Gelzer, and contributors Dahr Jammail and Sarah Olson: Have no worries.

None of you suffer under Uniform Code of Military Justice (UCMJ) jurisdiction. Courts-martial are congressionally created disciplinary hearing forums. They are established to punish military personnel and civilians assigned in support of military operations (contingency operations – this, a recent UCMJ amendment). Congress authorizes the commander-in-chief (our chief executive) to directly punish only those persons who come under UCMJ authority.

Again, none of you do.

Never mind the UCMJ is an illicit act of attainder, those touched by its “punitive articles” include:

(1) Regular component service members

(2) Cadets and midshipmen

(3) Reservists (Guardsmen) when ordered to active duty

(4) Retirees

(5) Military inmates

(6) Prisoners of War

(7) Certain civilians in company with military forces

Congress permits only one person, the president of the United States (POTUS), acting in the role of commander-in-chief (CINC), to punish people listed in categories under the Articles of War (AWs or UCMJ). The CINC delegates punishment authority downward to senior military officers who assemble and populate (convene) courts-martial. These admirals and generals are more commonly called “convening authorities.”

The word “jury” nowhere appears in the AWs/UCMJ (never has). There are no “juries.” There are no "trials." There are no “judges,” no “defense counsels,” or “prosecutors.” A court-martial is not a court. In fact, the practice of courts-martial is the practice of “attainder”punishment without law. It’s mattered not a wit Congress is proscribed from passing bills of attainder, stripping themselves that legislative authority. The AWs/UCMJ, acts of attainder, have flourished while the Constitution atrophies.

Courts-martial are councils of war called together in the name of the CINC. Their purpose is to gather information and make recommendations to the CINC (by way of the convening authority) regarding matters presented to members. Said another way, the CINC/CA orders military personnel to attend, report, and consult regarding disposition of matters inspected during these disciplinary hearings.

Whether their recommendations are accepted, modified, or rejected is left completely to the discretion of the CA/CINC.

In your specific circumstance, the very notion a military officer believes he can order any of you into a court-martial hearing, acting in the name and under the authority of the CINC, makes my point clearly and forcefully regarding an atrophied Constitution.

As there are no elements of a federal court (Article III) attendant to the congressionally created military hearings—courts-martial (Article I)—such as trials, juries, judges, and the like, there are no such things as “subpoenas.”

Subpoenas are unnecessary in the military discipline scheme. The CINC/CA simply orders his UCMJ subjects to be present at courts-martial..

Insofar as the CA/CINC holds no authority over you, he can't order you to do anything. That also means the CA/CINC can't punish you for being absent from Lt. Erin Watada’s GCM. No one…not even the POTUS.

In the United States, for the moment at least, acts of attainder are acceptable only when directed against America's servicemen. Many people are working hard to efface attainder being practiced against any person. People who've taken oaths to support and defend the Constitution.

Maybe now, as members of the press, you'll be motivated to join that effort.

I trust you’ll find this information invaluable now that you know you’re off the hook, and know why. I suspect professional colleagues will be as relieved as you. Please pass the word.

And please consider making a donation to the Warrior fund to help our troops defend themselves from the acts of attainder I’ve just described. Spread that word too.

Be generous. Our kids are in desperate trouble. You know the feeling.

Here endth the lesson

The JAG Hunter Copyright©2006


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