Sunday, June 20, 2010

Wrong answer

Former Marine and FrumForum writer John Guardiano doesn't know what he's talking about.
...a blogger by the name of Terry Welch has been raking Kirk over the coals because, Welch alleges, Kirk apparently wrote political tweets and gave political campaign interviews to the media while on active duty. And this, Welch lectures, violates Department of Defense prohibitions against partisan political activity by U.S. military personnel on active duty.

Welch is wrong, and for several reasons
Actually, it was not I who alleged Kirk violated regulations. It was Deputy Secretary of Defense (Plans) who said he did, writing that he must submit a document in writing before he would be approved for duty in Afghanistan, because of "concerns arising from his partisan political activities during his last two tours of active duty." When I contacted the DoD, they confirmed Kirk violated regulations. With the Pentagon's verification, it makes no sense for Guardiano to argue I'm "wrong."

Guardiano, however, seems to have no grasp of the facts. Let's look at the list of reasons he says I'm wrong.
* First, Kirk is a reservist who absolutely is entitled to a civilian life separate and distinct from the military.
Yes, but once he's on active duty orders, be they AT, ADT, ADSW or deployment orders, he falls under UCMJ regulations like any other active duty service member.
* Second, even if Kirk were not a reservist, he nonetheless is entitled to off-duty time during which he is free to engage the public dialogue, either as a civic-minded citizen or candidate for political office. Active duty military members are absolutely forbidden for running for public office. They are allowed to give their political opinions, but there is a list of forbidden activities, including any work relating to partisan political campaigns.
* Third, Kirk’s political tweets and political interviews were conducted during off-duty hours.
Actually, the tweets were conducted while on duty in the Pentagon. One actually began, "On duty @ the Pentagon's National Military Command Center." As for the interviews, Kirk still couldn't take part in those interviews involving Blagojevich, because he was on orders and they were comments involving himself and another politician.
* Four, Pentagon bureaucrats to the contrary notwithstanding, Department of Defense directives and regulations do not trump the Constitution of the United States, which protects free speech.
This is absurdly obtuse. There are a number of limits on service members' free speech, including Article 88, which outlaws "contemptuous" speech against the president. More than 115 prosecutions for this article have occurred in our nation's history (pdf link), including at least two such prosecutions under the Bush administration. Heck, service members lose their Fifth Amendment right to self-incrimination completely, so why would you think it impossible for the military to limit the First Amendment right? [I was incorrect. Article 31 of the UCMJ allows for rights against self-incrimination. Thank you, Steve, for pointing that out.]

As attorney Dean Falvey has written, "The military is perhaps not the best career choice for someone bent on the vigorous exercise of civil liberties."
* Five, we should encourage military personnel to speak out on great and pressing public-policy issues because this will enrich the public dialogue. Indeed, more free speech is better for all of us and our country.
Politicizing the military is, I believe we all should be able to agree, a bad idea. It led to the fall of democracy in Rome and countless military coups, which rarely lead to freer societies.
* Six, as a practical matter, given the ubiquity of new social media networking tools and 21st communication technologies, conflicts over free speech within the military are bound to become more commonplace.
The fact that more people are likely to find themselves in conflict with the regulation does not negate the regulation. Yes, it does raise issues about the need for proper education of military members, but as Falvey reminds in the article linked above, drill sergeants are known for reminding young recruits that they're in the military to "defend democracy--not to practice it."

Guardiano is welcome to argue the regulation is wrong and should be changed, but that's distinct from the argument he's making, which is that Kirk didn't violate the regulations at all. It should be added, though, that not even Kirk has argued he should be allowed to conduct partisan activities while in uniform..

As I have said before, however, the biggest issue here is not Kirk's violations, but the fact that, as minor as they were, Kirk felt compelled to lie about them. According to the Pentagon, Kirk was counseled about the infractions, meaning he knew they existed, yet he claimed they never happened. Because of this easily verifiable falsehood, it lends more credence to the idea that Kirk's other nine lies about his military service. The fact that only 10 percent of Illinoisans believe Mark Kirk has told the truth about his military experiences does not bode well for a man who claims to be running on themes of "Experience, Integrity, and Reform."

Most military folks understand that they live by a different set of rules. As a former Marine, Guardiano should know better.

Update: Guardiano has asked for some time to formulate an answer to the uniformly negative response of the commenters to his post. He seems to be preparing for a defense of the First Amendment in military settings. I agree that service members should have the right to speak on issues of public import, but I would point out that Kirk isn't accused of speaking his private mind while on duty (which would be allowed). Kirk’s accused of acting as a partisan politician while in uniform, which is forbidden. Those interviews weren’t “man-on-the-street” interviews in which reporters just pulled aside a service member and asked for a veteran’s personal opinion on Rod Blagojevich. Those reporters called a politician by the name of Mark Kirk, who should have said, “I’m on active duty right now, but I’ll get back to you in a couple of weeks.” It’s not a stretch to extend Guardiano's argument only a bit further to defend Kirk giving a political speech from Afghanistan while on duty.

So, can the DoD limit free speech? Guardiano already admits that it can, but argues in comments that...well, there's not much of an argument made, actually. Unfortunately for Guardiano, there are numerous Supreme Court cases on this topic, including Parker v. Levy. In that case an Army physician said publicly he didn’t “see why any colored soldier would go to Viet Nam: they should refuse to go to Viet Nam and if sent should refuse to fight because they are discriminated against and denied their freedom in the United States.” He also called Special Forces soldiers “liars and thieves,” “killers of peasants,” and “murderers of women and children.” He was charged with conduct unbecoming an officer and challenged his conviction on a First Amendment basis.

William Rehnquist wrote in the opinion of the Court:
“While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it.”
Also, in Chappell v. Wallace Chief Justice Burger wrote:
The need for special regulations in relation to military discipline, and the consequent need and justification for a special and exclusive system of military justice, is too obvious to require extensive discussion; no military organization can function without strict discipline and regulation that would be unacceptable in a civilian setting...In the civilian life of a democracy, many command few; in the military, however, this is reversed, for military necessity makes demands on its personnel "without counterpart in civilian life."...centuries of experience have developed a hierarchical structure of discipline and obedience to command, unique in its application to the military establishment and wholly different from civilian patterns.
Update: Ellen of the Tenth's Carl Nyberg reminds us that the service of Mark Kirk (and other Reservist politicians) is inherently unconstitutional.

This post has been edited, as I initially misspelled Mr. Guardiano's name.


Anonymous Anonymous said...

Interestingly, the comments under his article are highly critical of his premise and have caught him off guard as he asked for some time to respond. I think he will feel like a fool as the fallacy of his argument sinks in.

7:32 PM  
Blogger Nitpicker said...

Yeah, I feel kind of bad for him except that he continues to defend his article so vociferously, using increasingly irrational ad hominem attacks against commenters.

1:08 AM  
Anonymous ktward said...

You misspelled JG's name?
Dude. In the words of my daughter to my son, "Oh man, you're in trouble!"

Perhaps only FF regulars might understand the full weight of such an error; Guardiano is certifiably OCD about the spelling of his last name.

And if I didn't have other, over-riding points to make, I'd rub it in at every opp. (Yes, I'm that evil.)

11:24 PM  
Blogger Nitpicker said...


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