DoD Under Secretary says Mark Kirk broke the law
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.
- This document contains nothing which could damage national security, the threshold for the lowest levels of classification.
- Nowhere is it marked CLASSIFIED.
- 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.