Wednesday, June 09, 2010

DoD Under Secretary says Mark Kirk broke the law

While even those coming very late to the game realize Mark Kirk has used his Navy Reserve service--both actual and imagined--as a "centerpiece of his campaign and an integral part of his message," it seems the Department of Defense was unhappy with Kirk for making his status as a politician part of his service while on active duty.

Because of his position as a Congressman, Kirk was required to receive a waiver in order to perform training in Afghanistan, as numerous DoD and civil codes forbid such service (pdf link). Yesterday, a source with connections to the Kirk campaign forwarded me the DoD's "exception to policy" memo which allowed Kirk's most recent trip to Afghanistan and included a very interesting paragraph. (See full document below.)

As a candidate for the vacant Senate seat in Illinois, Commander Kirk must complete the appropriate acknowledgment of limitations required for all candidates on active duty (DoDD 1344.10, paragraph 4.3.5.). Ordinarily this acknowledgment must be completed within 15 days of entering active duty. Because of the short period of active duty and concerns arising from his partisan political activities during his last two tours of active duty, Commander Kirk must complete this form prior to his entry on active duty.
You see, most of this document is the usual regulation-laced DoD gobbledygook, but those last few sentences should be shockers to people who know how the military works. The Deputy Under Secretary of Defense (Plans) is clearly stating that Kirk violated DoD regulations in the past by conducting "partisan political activities" while on active duty. Not only that, but she is calling Kirk out over those violations.

And those violations are, in fact, a prosecutable offense. As the regulation states, "Violations of paragraphs 4.1. through 4.5. of this Directive by persons subject to the Uniform Code of Military Justice are punishable under Article 92, 'Failure to Obey Order or Regulation...'" A violation of Article 92 is punishable by up to two years of confinement and a dishonorable discharge. Mark Kirk broke the law at least twice according to this memo and seems to have escaped any punishment at all.

It's possible some of this was dealt with before, when Capitol Fax Blog's Rich Miller noted Kirk's Tweets while on active duty probably violated regulations. Kirk initially claimed a staffer, not he, had posted a preapproved tweet, but he seemed to tacitly admit culpability for the messages later, saying, "It's something that I will not do again." Regardless, "behind-the-scenes activities" are also against regs (as TPMDC pointed out).

Though Capitol Fax Blog's initial post includes a promise by the Navy to provide more information about Kirk's actions by the early part of August 2009, Miller says he has received no further statement from the Navy despite numerous requests. This memo, then, is the first evidence of official Department of Defense acknowledgment that Kirk violated regulations against political activity while on active duty. To be clear, there's no way of knowing at this point if the tweets are even what's being discussed in the memo. I have been in contact with Major April Cunningham, a DoD spokesperson. Perhaps she can provide explanation of the exact "partisan political activities" mentioned, but I am still awaiting her response.

I also contacted the Kirk campaign for a statement, but have received no response.

It should be pointed out, though, drill weekends are not usually referred to as "active duty," so it's possible the violations mentioned in the memo are separate from the Twitter issue and may have occurred while he was on annual training, perhaps including his service in Afghanistan in December 2008 to January 2009. Until the Kirk camp or the DoD responds, however, there's no way of knowing when Kirk violated the regulations (and the law) or, perhaps more importantly, how he avoided punishment for those violations.

Mark Kirk Waiver

Update: To the emailer who suggested I would be prosecuted because this is a classified document, I ask that you review the document again.
  1. This document contains nothing which could damage national security, the threshold for the lowest levels of classification.

  2. Nowhere is it marked CLASSIFIED.

  3. If it were classified, then the fact that it was emailed between Kirk staffers on unsecure email accounts (I received it from a source who verifies this) would mean that Mark Kirk, an intel officer with a top secret clearance, would have mishandled classified information. Therefore he would be subject to the loss of his clearance and possible criminal charges.
Nice try, though.


Blogger Carl Nyberg said...

Nice work, Nitpicker.

4:05 PM  
Anonymous Deirdre said...

Well done! Keep it up.

7:46 AM  
Blogger Benthamite said...

Just FYI, but Article 92 is a blanket article that applies to a broad range of activities. Any violation of an army regulation or general order not covered elsewhere in the UCMJ is covered by this article. Thus moving at the position of attention or wearing your hair too long are also violations of Article 92 and also subject to a maximum sentence of 2 years and a dishonorable discharge. However, in most cases a soldier whose hair is too long is likely to be told "Get a haircut, hippie", rather than being court-martialed. The maximum sentence under Article 92 is much higher than usually needed in order to allow for flexibility. Technically, if a superior officer told you to grab him a bagel because he was stuck in a meeting, willfully failing to do so would be a violation of Article 90 and carry a maximum sentence of life in prison, or death if it happened during wartime.

If Kirk escaped punishment for his actions, it's probably because his chain of command didn't think a few tweets warranted anything harsher than a verbal admonishment. It's not as though he filmed a political ad while out on mission or conducted a tv interview using his fellow soldiers as props - or even attended a political event in uniform (that's a big no-no). That the command mentioned it at all, rather than being a red flag, is evidence that they were aware of the problem and had dealt with it.

The charge that he mispresented his military career is far more serious.

3:23 PM  
Blogger Nitpicker said...

Noted, Benthamite, but it seems his violations of policy were important enough to be mentioned in a memo from the Under Secretary of Defense (Plans) down to the Chairman of the Joint Chiefs, the Secretary of the Navy and Commander, CentCom. If they weren't a big deal, one wonders how the Under Secretary would have even heard about them.

3:27 PM  
Anonymous Dinah Menil said...

You know, you can find San Francisco criminal attorney here

4:59 AM  
Anonymous chilynne said...

Mark Kirk is not running for a vacant Senate seat. He is the Republican nominee running for the seat currently held by Roland Burris and previously held by Barack Obama.

8:47 AM  
Blogger Nitpicker said...

Actually, since Burris has decided not to run for re-election, there is no incumbent, so...

8:51 AM  

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