BRIAN FOSTER AND MILITARY JUSTICE

I want to go over a recent and rather amazing development in the military justice arena. It’s relevant here because the original case was about a sex-offense charge. What especially captured my imagination was the thought of not only having to confront a sex-offense charge in a time of Mania, but also on the dark and bloody ground of military law (whose dance of darkness with Mania law will be discussed below).

In 1998 a Marine military police sergeant, Brian Foster, was in the midst of a difficult divorce (see articles here , here , and here . There were two children. Suddenly, after the usual divorce negotiations reached an impasse, the wife’s civilian attorney called the Marine Base (Pendleton, in California) and reported the wife’s charge that he had abused her and raped her years before.

Instantly, what had been a not-unusual contested divorce negotiation in civil law became a matter of military law (and this at a time of general Mania that had quickly taken root in the military setting as well as the civilian setting, where throughout the 1990s the Genderist and Viktimist duo had made their huge two-pronged inroads into the military).

Foster bravely refused to plea-bargain, though he was advised to plea bargain – and not without some tactical wisdom – by a military lawyer. A military lawyer who, not unlike his civilian counterparts, might well have figured that any attempt to defend oneself against a sex-offense charge in time of Mania and on the treacherous ground of the military justice system would be hugely difficult and would most probably fail.

Foster retained his plea of innocence and was found guilty by court-marital in 1999, winding up shortly thereafter at the military prison (formally the United States Disciplinary Barracks or USDB) administered by the Army at Ft. Leavenworth, KS (and not to be confused with the Federal penitentiary across the road from the fort/base in Leavenworth itself).

His appeals took 9 years, during which he was a prisoner, stripped of rank and pay. And the military philosophy, especially among Marines, is that if you’re a prisoner and have ‘let down’ your Service then you are the worst and lowest of the worst and lowest  - so you can imagine what it was like.

Finally, in 2009 the Navy-Marine Corps Court of Criminal Appeals (NMCCA) overturned the rape conviction and released him. He had thus spent almost 10 years behind bars. He is still in the Marines, trying to get his life together, collect back pay, and figure out his future. The good news is that he does not have to register as a Sex-Offender.

The case – as is not infrequently the way things go in these things, and especially in the military-justice (MJ) setting – was riddled with problems (the NMCCA referred to great and continuous and sustained failures at all levels of the case).

And that prompted the Navy Judge Advocate General (JAG), the 3-star chief lawyer of the Navy-Marine Corps, to order up a study of the MJ system in the Navy-Marine Corps.

It is the Report produced by his order that I am going to comment on here. An article discussing it is here. Its text is here . It is 80 pages long and a military-document (not classified, by the way); but it is quite readable, and the parts that describe the assorted ‘failures’ are rather engrossing, if you have the stomach for it. As I will point out in my comments, you can catch clear glimpses of both how the MJ system itself is skewed, and then see how the further pressure of Sex Offense (SO) Mania law simply add to the lethal mess.

I will conclude with a thought as to how these two systems or regimes – Military and Mania law – have actually fed into each other, the military approach to law seeping into the civilian SO Mania, and then the Mania sloshing back and further skewing the military approach.

As always in a pdf document, the Adobe reader assigns a page number, and then there is a page-number that is actually on the page in the text of the document itself; so again I will provide a double page-number; the first being the Adobe reader number, and the second being the page number of the text itself. So page 22-15 is the same page; there is a 7-page differential because the Adobe document also gives you at the beginning a couple of pages that are the Navy letter from the JAG accepting the Report and the letter to the JAG submitting the Report. And also a couple of roman-numeral pages listing the Contents.

The first page (1-0) is a standard Navy letter from the JAG accepting the Report submitted per his orders to study the whole system. He refers to “how the Navy JAG Corps [the entire corps of lawyers that serve the Navy and Marines] executed its statutory mission over the course of the past 20 years with particular focus on the competence of the key participants, judges and counsel”.

In other words, there are problems - problems in utterly core  institutional areas - that have been on-going in the Navy MJ system for (at least) 20 years. And now Foster’s case (the letter specifically mentions it) has blown wide open so let’s try to ‘fix’ these problems (that have existed, clearly, for 20 years at least).

In its second paragraph the JAG’s letter specifically ‘concurs’ in the Report’s conclusion that “the JAG Corps has not maintained a consistent focus on military justice and the litigation of courts-martial”; which, not to put too fine a point on it, is the prime ‘statutory’ task assigned to it by Congress when it erected the MJ system we have now – the Uniform Code of Military Justice or UCMJ – in 1950.

Stunningly, the paragraph continues: “This is so despite the fact that there have been warning signs of institutional weakness in how we have supported and advanced military justice, and litigation expertise in particular”.

“These warning signs include examples of failure in individual cases.” Within that bland admission are god-knows-how-many lives and careers wrecked and – given the SO Mania regime – lives made almost unlivable once the convicted ex-servicemember finally was released out into the (Mania-addled) civilian world replete with its web of ever-intensifying Registration laws and assorted other ‘regulatory’ laws. And with a Bad-Conduct Discharge to boot, in case the released guy tries to look for work and submit a resume.

As is the standard military and Pentagon approach to these things, the JAG immediately intones the equivalent of ‘moving right along’: “Going forward, the Navy JAG Corps must be able to competently and fairly prosecute and zealously defend any charges referred for trial by court-martial”. Beneath which exhortation is the frightening reality that such has not heretofore been the case.

And then this sterling exhortation: “To accomplish this, we must stay focused on military justice as our statutory mission”. Soooo, for all these decades, you haven’t been focused on the reason and purpose Congress set you up for in the first place?

Followed by: “The actions taken prior to the case of United States v. Foster, which led to its being identified and disposed of, have given us a current trial and appellate bench and bar that is competent and eager to serve”. And where, pray, did you magically and suddenly discover these professional angels, among what appears a miasmic swamp of judges and attorneys not so competent and motivated? (Not a rhetorical question; see below.)

There only remains, he concludes, to “correct” whatever “institutional deficiencies” might remain. But of course. Onward and upward and let’s not look back. That’s a familiar Beltway refrain generally, nowadays; and I expect that if the Mania Regime itself ever finds itself downrange of Tire-Kicking Klieg lights this prayer will be bleated ad infinitum. To date, all we have gotten is Congress’s can-do bray that it will help by imposing ‘uniformity’ among the SO laws of the States and thus it produced the Adam Walsh Act. Ta-dah!!!!

I will also remind you here that the formal Navy Report we are about to look at is – while remarkably candid – still a formal, top-level Navy Report: in this system, subordinate officers (including the Captain who authored it and submits it in the 2^nd letter in the pdf file) do not just go and write a dirty-laundry Report out of best or lesser intentions and then just sign it and send it along to the Big Enchilada. You will find yourself out of a career, at the very least, verrrry quickly. Rather, you are ordered by the aforementioned Enchilada to conduct your ‘study’ and submit your Report AND you are specifically told to let the laundry hang out … although you are also given very careful ‘guidance’ (as they like to say in the Navy) as to just what laundry and just how much laundry to hang out; in other words, you are told beforehand just what you are going to ‘find’. In case you were thinking that we are not dealing here with a thoroughly top-down hierarchical organization that is by its very nature in the business of Controlling Outcomes. (More on this below.)  

Now to the Report.

The case is noted: “A Marine was convicted of spousal rape and assault … he began serving a lengthy sentence of confinement on December 3, 1999 … the post-trial process ultimately resulted in the rape conviction being overturned for lack of evidence … but it took nearly 10 years while the Appellant remained confined … the concurring opinion of the Court noted 'a failure at every level of military justice in this case'”.  (4-i)

Let us immediately grant that at some recent point some judge at the military appellate level was in a position and of a disposition to call the whole thing off in this case; so something had changed for the better in the Navy MJ system or organization. But whether that was prompted by a professional zeal for justice or the integrity of the system, or because somehow the thing was otherwise going to go-public anyway … who can know?

But actually, there is indeed more to it than that. This case was specifically mentioned by Congress in its 2010 military budget act as reason for the JAGs getting their house in order. And the Department of Defense Inspector-General also had some very “hard-hitting” things to say. You can access that material in a JAG-community blog site here.

But as you will see, I don’t think that anything short of a serious and profound re-thinking of military justice – even in and especially in the form of the UCMJ – is required. The JAG’s ‘house’ (and the houses of all the Services’ military justice operations) are built over an abyss, and a dark and fetid abyss it is.

Let us also recall that these “failures” were not minor, not the occasional and humanly inevitable mis-tweaks that mar any human endeavor. Rather, these “failures” lay precisely at the core of the system’s entire mission for which it was created by Congress in 1950.* This is not like saying you hadn’t been keeping the paint fresh while making the voyage; this is saying that you forgot where you were supposed to be going and let the engines run down while you were in the middle of the voyage.

And even the in-house JAG site refers to the Foster case forthrightly as a “debacle”.

The Report gently mentions that for quite some time in the past decades the actual prosecutors and defense counsel in military court-martial have been “first-tour” and verrry junior-ranking officer-lawyers.

In a necessarily and essentially hierarchical organization like the military, imagine what it means to be a first-timer, just sworn-in, and asked to prosecute a trial where there are life-altering consequences at stake for the accused … Now imagine such a whippersnapper being asked to defend a client under those circumstances: you are a verrry new and junior officer; your commanding officer , maybe even an admiral (or Marine general), has ordered the court-martial (and therefore almost becomes a Party to the case himself); and if you win, then the Navy or Marine Corps (and that commanding officer of yours) loses - and loses in front of everybody.

Your client gratefully walks free and you are left facing the music and wondering how to continue your career, sustain your family, and pay for the Boxster you just bought when you were commissioned as an officer. What would the average lawyer-ling do? (Hint: you can’t use Abe Lincoln or Michael the Archangel or Confucius or the Buddha as your definition of ‘average’.)

And now imagine all of this toxic stew plus the added heat of a Sex Offense Mania roaring along in the civilian world and also (as an inevitable accompaniment to feminism and victimism and genderist agitation) in the military.

Add to that bit the fact that up until 1997 the junior attorneys – potential prosecutors or defense counsel – were all in the same squealing puppy-pile of an office (the Navy Legal Service Office, as it was then known); they socialized and worked together, all the time ever-aware that the next time around one might be working for the other after a promotion or other inevitable development over the course of a military career. And these pups had the same boss-lawyer who, theoretically and practically, had to advise either or both of them, even when they were on opposite sides of the same case.

With tasteful delicacy, the Report notes that “ethical considerations were raised” by this “awkward and ineffective” arrangement (11-4); an arrangement “ill-suited to provide the best pre-trial military justice advice to … clients facing a formal investigation or prosecution”.  (12-5)  Y’a think?

The Report goes on to note, and with some legitimacy, that in addition to the trial responsibilities of military justice, most base legal offices were also responsible for helping servicemen with assorted legal forms for normal processes (Wills, buying and selling stuff) and also with advising the commanding officer on legal matters (and in the higher commanders, this got to include advice on international law and negotiation and also application of the Rules of Engagement in this or that instance).

But as Congress had foreseen it, their primary responsibility would be to ensure that justice was carried out in the American mode, meaning that any accused serviceman-citizen was given effective counsel in a legitimately un-rigged and competent justice system in the military. That was the idea.

“There has been more attention paid”, says the Report, “to on-going litigation skills and the early representation of clients facing accusations of misconduct”. Well, thanks God for that.

But like air bubbles in a wall-to-wall carpet, in this system you squash a bubble here and another one quickly pops up over there. Many legal office commanders have “sterling international or environmental law credentials, but little or no in-depth and update litigation experience, or particularly up-to-date knowledge of how to properly investigate and prepare a complex case, such as a sexual assault including forensic evidence or computer crime.” (14-7)

So the boss lawyers who are supposed to supervise the junior ‘boots on the ground’ trial lawyers, have little trial experience themselves. But if the juniors are all first-tour and ‘first-time’ lawyer-officers, and look to the seniors, and yet the seniors themselves don’t have much useful trial experience … well, good luck to all the accused, present, future, and especially for the past 20 years (at least).

As the Report notes, advice and even important decisions must be taken early on in a case, even in the pre-trial phase, by prosecutors and defense counsel, and “their advice and decisions must be correct or the viability of a case – or its successful defense – could be placed in jeopardy”. (15-8)  Yes – but how did the entire Navy JAG Corps lose sight of this bit of Law 101 for decades?

And you will notice the ominous inclusion of ‘sexual assault’ as an example here; this fire is still burning in the military, even as it seems to be burning itself out or losing momentum in the civilian world.

The Report goes on that “it is not clear whether a lack of sophistication in investigation or pre-trial preparation, in military justice advice in complex cases such as sexual assault and computer crimes” has contributed to the problem. (15-8). I note here the repetition of that curious mantra “sexual assault and computer crimes” as “complex cases”. It is suspiciously Correct in terms of politics that ‘sex offense’ and ‘computer crime’ are mentioned as the only examples of “complex cases”.

First, those two just happen to reflect Obama’s recent effort to refocus the SO Mania on ‘sex crimes via computer’.

Second , it seems to me that the Report is trying to insinuate that ‘sex offense’ cases are particularly “complex”. This may be a way of trying to excuse-beforehand some of the whackery and skullduggery that we all know goes along with SO jurisprudence. It may also be a way of signaling that the Mania will continue to receive respectful obeisance in the military system. (About this, see more below.)

Along the lines of what I have often said, much of what this Report calls “complexity” in SO cases is simply the alien and genuinely anti-Constitutional thought and practice that has been lethally introduced into Western and American justice through the SO Mania; and things are only further frakked when this alien bug is introduced into a military justice system that is already by its very essence and nature unreceptive to and even hostile to adversarial, reason-based, evidence-based, fact-based , impartial jurisprudence but then is also constructed upon an elaborate (and Stalinist) kabuki-masquerade whereby the appearances of constitutional justice-doing merely serve to mask a far more vital and sinister control-oriented dynamic.

The Report mentions one case (not sex-offensual) where all the players expected the classic military “negotiated guilty plea”. (16-9) This outcome represents a hefty chunk of the ‘successful prosecutions’ and convictions that comprise the MJ system’s stunning ‘success’ and conviction rates: hardly surprising when you think about it, because if a civilian defendant in a sex-offense case is often well advised to plea-bargain rather than face trial-in-a-time-of-Mania and under the laws of a Mania-regime, then a military defendant – facing all that plus the already built-in rigged dynamics of the MJ system itself … could surely be forgiven for imagining that nothing short of the proverbial twelve legions of angels could see him successfully through a trial.

And I can’t help but think that starting in the early 1990s former military lawyers practicing in prosecutor’s offices or even holding political office contributed to the already alien agenda of Victimist law (coming from that alien legal Universe that is not-American and even anti-American and anti-Western) their own experience of the almost-equally alien and even more sinister MJ Universe. In this way, through the rigging and strategizing to pre-empt any sort of defense from the already-targeted (and doomed) defendant, I think former military lawyers helped ‘militarize’ American civilian law and especially contributed their ‘militarization’ to the already lethal ‘revolutionary’ don’t-confuse-us-with-facts agenda of the alien Victimist law.

You see what we’re up against here.

There are fewer courts-martial of any type nowadays. (18-11) This is partially a result of the shrinking of the Fleet almost by half in 20 years, and probably also a result of the fact that military ‘standards’ have slipped or been made to slip in that timeframe. But if I am right in reading between the lines of this Report, it wants to assure one and all that sex-crimes, so vital to any feministical and victimist presence in the military, will continue to get play.

The Report also suggests (20-13) that part of the reason is that the Naval Criminal Investigative Service (so aptly re-named 20 or so years ago, and yet irony is lost on the military mind) has had its focus shifted away from ‘general crime’ and toward anti-terrorism and force-protection work. (I would imagine that its assistance should offer little assurance to those in need of the protection.)

But its long-known ability to ‘find’ what it’s supposed to find (usually for the prosecution) and ‘not find’ any exculpatory evidence (which by serving the defense will only slow things down),  will work perfectly well with ‘sex offense’ investigations and the entire SO Mania approach. And perhaps some former military investigators helped in their own way to ‘militarize’ the civilian police in the matter of sex-offense investigations, although I don’t think with as much success as the former military lawyers had.

On page 23-16 the Report sidebars a case (not Foster’s) which was a 2003 Navy sex-offense case, where the military trial judge’s errors were found to include: allowing a nurse practitioner to improperly provide expert advice on rape trauma; improper admission of evidence under the excited-utterance exception to the hearsay rule, and allowing a government witness to improperly bolster the alleged victim’s character for truthfulness. None of which is unfamiliar to the SO community.

Military defense counsel have now been provided with a central office to which they can turn when they need advice in a case. (27-20) Except that’s a problem for some of them because it turns out that any conversations about the case with the ‘senior helper’ are not covered by attorney-client privilege. Which is not to say that ‘client confidentiality’ has ever stood a great chance in the MJ system where the very junior defense counsel leave the office at the end of the day to have hamburgers and/or beer with their prosecutor peers or their boss-lawyer.

THEN the Report turns to military judges. It notes that – alas – “few officers serving as a military judge at the time of a promotion board have ever been selected for promotion”. (29-22) And that “there is an undeniable perception that the judiciary is not a career-enhancing assignment for Navy judge-advocates.” (29-22)  And that for (at least) the past 20 years Navy efforts to get military lawyers interested in all of this has been greeted with “significant skepticism”. (29-22)

But how many efforts can the Navy make without having to gut the entire dark beating heart of the system: that it is hostile or at least opposed in essence to any actual Western Constitutional and adversarial dynamics of law and trials? (The SO Mania has for quite a while gotten around this problem in civilian law by simply insisting that Victimist law was a ‘reform’ and not an overthrow of the classic core Constitutional American and Western principles.)

This reluctance of the military lawyers is, I think, far more ominously significant than the Report or the Navy care to discuss: this aversion to trial-work on the part of young military lawyers and more senior military lawyers eligible for military judge jobs, even though it is the JAG Corps’s statutory raison d’etre, reflects a Corps-wide awareness that international law and environmental law and good management abilities are going to get you further toward admiral’s rank and trial work won’t.

But why is that? My thought as to that answer is: because young and old, brand new or long experienced, they all know deep down that the whole military-justice trial thing is rigged, and that it has to be rigged, and that it cannot be bucked successfully for long, and so you might as well find some other area of acceptable activity that will get you promoted with far less wear-and-tear on your career and maybe your ethics and professional ideals (and even, as used to be said, your immortal soul).

In terms of organizational psychology, you might even credibly consider that the whole outfit wants to avoid working in what it knows is its deep, dark, evil ‘place’ – even though trial-work and litigation (and prosecuting those hapless servicemen dragged before it) is at least on paper the actual primary reason for their Corps’s existence (and rank and pay and benefits and status and perks and bennies and ribbons and medals).

And so, if I am somewhat accurate in this, then you can imagine this: the corruption worked by the SO Mania laws on those professionals required to enforce and prosecute them in civilian life is intensified all over again in the military system that is already anti-constitutionally rigged to begin with and has been for almost two hundred years. 

Yes, the Supreme Court has frequently pronounced the MJ system (more or less) Constitutional. But before the alien Universe of Victimist and SO Mania law, the Court was already running a field office for the anti-constitutional expanded-military-justice Universe. In fact, the Soviet Universe of ‘revolutionary law’ (the only good law is one that supports the Revolution) that is the home of Victimist and Radical Feminist law ‘reform’ is pretty much the home Universe of Military Justice too, where the only good outcome is one that supports the Command by producing reliable convictions of those defendants whom the Command has selected for prosecution (see Note 1 below). Funny how the Universal night moves.

And in all of these MJ matters, as in the SO Mania matters, you must hold in your mind a clear distinction between ‘legal’ and what is genuinely right (and constitutional).

Thus (30-23) service in the trial or appellate judiciary came to be “universally viewed” by senior military lawyers “as a signal that an officer was going to retire, desired geographic stability, wanted or needed ‘time out’ from the rigors of Fleet duty, or simply that the officer was available and the billet needed to be filled”. In other words, among your peers, judge-work meant you simply wanted one last peaceful and unchallenging tour of duty to earn your retirement and get out of town, or you had just bought a house or put the kids in school and would rather not move, or you didn’t want to go helicoptering around ships deployed in the middle of god-knows-what-ocean, or you just happened to be up for re-assignment and some bench needed a judge.

With a stunning straight face the Report deduces that “this process did not produce a bench of highly qualified judges, it negatively impacted military justice, and it reinforced the perception that service in military justice billets was not career-enhancing”. Y’a think?

On page 35-28 the Report quotes another pious but ominous Report to the effect that “military justice plays a critical role in the maintenance of good order and discipline and accountability in the Navy. Efficient and effective military litigation requires experienced, well-trained, judge-advocate litigators”.

Yes but No.

Swift and immediate punishment of infractions is essential to military good order and discipline. ‘Military Justice’ only developed as it became obvious after the American Revolution that the military was going to have to somehow keep doing this while also respecting the rights of Citizens, even though they were in uniform.

This was especially true in the Navy where simply being aboard a cramped ship at sea  – even in peacetime – that was constructed of wood and carrying flammable canvas and all manner of explosives and requiring open flame for cooking and night-time operations, and all of this far from home shores … you can see how the Navy tradition (as opposed to the Army, at least until WW1) was especially ‘command-heavy’: the will of the Captain was well-nigh absolute and had to be. But then, too, being on a ship meant that you didn’t often get a chance to break ‘civilian’ laws and no ‘civilians’ really saw the thing in operation.

Since the darkly inspired 1950 Pentagon take-over of Stalin’s evil plan (make sure you own all the players and you can promise anything you have to and still make sure things will turn out the way you want) the UCMJ and its JAG priesthood have been the keepers of a dark flame. But it pays well and if you let yourself get immersed in the words and the furniture you don’t have to give too much thought to what dark beating heart actually makes the thing work. (And you can say this about the SO Mania Regime as well, can’t you?)

And THEN you find out (37-30) – do they script these remarkable plot points? – that the two legal experts in litigation that the Navy has hired to juice up the JAG Corps are – waittttt forrrrr ittttt! – female sex-offense lawyers. One of them was formerly employed by the Department of Justice where she was the founding Director of the SMART office (you know, the government office responsible for implementing and furthering the Adam Walsh Act and SO registration and all that); the second hire had previously served the Secretary of Defense as his Senior Policy Advisor for Sexual Assault, Policy, and Response (she was, if you like spiffy military acronyms: OSD SAPRO).**


Both are said to have much trial and litigation experience, but of course those are probably prosecuting SO Mania trials and we all know that anybody good at that is not altogether of the American legal Universe.  But then, nowadays, neither is much of the Beltway, the government, and – alas – the Pentagon. (If you have any talent as a screen-writer, fiction writer, or stand-up comedian … I beseech you … )

Overall, the Report observes, (40-33) that “the fact that the majority of the prosecutors and defenders are first-tour Lieutenants remains a problem” for the JAG Corps. They “have little experience in the courtroom and even less with the military justice system”.  Inexperienced prosecutors, among other things, can fail to turn over exculpatory evidence to the defense. Inexperienced defenders “are at risk of” inadequately investigating cases, not identifying available strategies and the tactics that could make them work, can’t easily identify potential witnesses and witnesses, can’t often prepare effective sentencing reports, “concede when they should not and fail to object when they should”.

BUT, the Report immediately goes on, “while all of these issues persist”, yet still “the information available” does not indicate “a general level of incompetence”.

Well, if that’s true, then why go to the trouble of the Study and the Report? Is there a frakkulous problem or isn’t there? And given the conceptual problem – conceptual abyss, really – at the heart of the MJ system, what 4^th grader would presume that things could run well in the first place?

And we cannot forget to factor in that since the law schools have by and large turned to the Alien Side by embracing the Universe of victimist and radical-feminist law and deconstructive ‘critical legal studies’ (laws and societies and actual, genuine due process are merely engines of oppression), then what professional self-respect and sense of duty has been inculcated in them? It seems to me that they come out of there figuring it’s all just a game and a job or else they see themselves as ‘revolutionaries’ whose mission is to go after ‘oppression’ by taking whatever means necessary to make law ‘liberate’ this, that, or whatever. (Lawyers only come to the military after they have graduated from a civilian law school and pass a State’s Bar; the Service only gives them a short course on military law’s different procedures and practices and how to wear a uniform.)

And the section then (still 40-33) concludes that Navy and Marine lawyers are “not proficient at voir dire (merits or sentencing), instructions on the merits, pretrial investigation and preparation, sentencing instructions and evidence.” Also that judges believe certain skills are vital for trial competence and junior lawyers don’t believe so. Also that “judges view the performance of counsel in court as more important than do counsel”.

So things are pretty good, really, except for these few things (that pretty much define what a defense attorney is supposed to do in the first place). This reminds me of the government saying that the SO Mania Regime is doing great but it just needs a few tweaks that AWA is designed to fix nice and quick, with no muss and no fuss. Yah.

If you are still sober having read this far, then you will do yourself no favors reading that “a particularly damaging combination of circumstances occurs when a judge is selected pending retirement and has little ability or interest in the work of the court”. (62-55) I am MORE concerned about the damage already and clearly evidenced by the fact that such a person would be put into the position of judging human beings – especially human beings in such lethally fraught circumstances – in the first place. What is wrong with the JAG Corps command itself?

But of course the answer to that is that they all know the system is rigged and after a while, in the psychology of this sort of thing, you get used to the demon that is really driving your days and learn to sort of not-see it, much as so very many French learned not-to-see the Wehrmacht and Gestapo and SS in their midst as the years of Occupation went on. But then eventually something happens and you have to explain how all that evil went on for so long without too much difficulty from the French at all, really. The Romans – those dead white European males who knew so little – already had a term for that scam: ars nesciandi: the art of not-knowing. Or as Hogan’s Heroes inimitable Sergeant Schultz used to put it: I know nuzzink; I see nuzzink!

Perhaps it would help to envision the Navy JAG as Coco Chanel, who rather adroitly managed to live well and keep her business going while quartered throughout the Occupation at the  Hotel Ritz in Paris that the Germans had taken over for their senior officers and important guests. Very adroit, very good management skills; very good networker; reliable and not somebody who was going to ‘make waves’. Ja.

And finally, the Report actually gives a meaty sideboard with some details of the Foster case (and the articles linked-to at the top of this Post will give you more).

Almost 10 years after Brian Foster's imprisonment, a new Chief Judge of the NMCCR finally saw this thing and took action (for reasons not altogether clear, as discussed at the beginning of this Post): he overturned the rape conviction.

Among the errors which the new Chief Judge found at the trial stage were that “the military judge erred when he allowed the doctor’s hearsay testimony about incidents the wife had related to him, which the doctor then described as if they were a medical diagnosis; the minor son was permitted to testify about incidents that took place before he was born; evidence presented by the government to prove rape – which consisted primarily in the wife’s testimony about an incident that had occurred five years earlier and testimony of the friend whom the wife told about the incident two years after it allegedly occurred – was insufficient to prove the charge”. (68-61)

To which the Report adds that “The lead appellate judge originally entrusted with this case, a Navy Captain [equivalent of an Army or Air Force Colonel], did not have an adequate military justice litigation background, he did not attend the Military Judges Course, he was not well-suited to the appellate bench, he did not take action on this case for nearly 18 months, and upon his retirement he left it and a number of other large and complex cases essentially abandoned.” (68-61)

Now you really have to ask yourself: is the Navy hoping to blame this guy as sort of a ‘bad apple’?

And I see another reason for this inattentive judge’s behavior: he saw that the thing was a frak-up, and that with sex-offenses involved it would be like trying to defuse a time-bomb to try to correct it, and that he could wind up losing his retirement and maybe his health, and perhaps he was kind of annoyed he hadn’t made admiral after all these years and pretty much figured he’d done his bit and none of this was his problem anymore, and anyway How address this case without exposing the rottenness of sex-offense law and jurisprudence, especially when combined with the dynamics of the military system.

So I am wary of the Navy JAG trying to hide behind a ‘bad apple’ while at the same time protecting the chosen ‘bad apple’ by focusing on institutional matters while at the same time ensuring that nobody actually does too much thinking and looks into the abyss over which the whole system was built from the get-go. This is the strategic equivalent of the strategies (so to speak) that lubricated the Iraq invasion and the Afghanistan operations.

This judge was a bad-apple, it surely seems. But he was – to play with a legal phrase – most surely “the fruit of a poisonous tree”. And the tree here would like everybody to focus on the apple and then go home in the sure and certain knowledge that nothing was really too wrong and anyway it’s all going to be fixed. Scout’s Honor.

It would help to see that this ‘bad apple’ appellate-bench judge was himself court-martialed for Dereliction of Duty, which is a specific UCMJ charge. But to do that would risk opening up the Core Problem, the Abyss, at the heart of the whole MJ scam. And it would send an impossible message to the military attorneys: that the age-old MJ deal with the Navy and the other Services (we pretend to do impartial judging and you pretend that we have; the Service gets the Outcomes it wants and the military lawyers and judges get to rock on in their jobs) is now being abrogated.  

The articles I linked to will give you even more sadly familiar details about how this case turned to the Dark Side as soon as it was dipped into the bubbling cauldron of the Sex Offense Mania.

But I think you can see that both the Military Justice System and the SO Mania Regime are fruits of lethally poisoned trees, and in some ways the same poisonous ‘revolutionary’ tree (what-Justice-is is defined by whatever we want to happen for our cause or organization). The MJ system is cloaked in the traditional furniture and phrases of genuine American Constitutional law, and the SO Mania Regime is cloaked in the sheeps-clothing of ‘reform’ and ‘sensitivity’; but though one looks kind of traditional and conservative and the other looks kinda Lefty and ‘progressive’, yet both are the same demon, wearing different dresses and wigs depending on who’ll be attending tonight’s party. The attendees will see what they want to see – but not what’s actually there. In front of their eyes.

The Military Justice System in its most recent (1950) incarnation began, I think, with that alien and truly anti-American Universe of Stalinist jurisprudential trickery (which was layered over the original problem from 1787: how to impose necessary military discipline on now-Constitutionally protected Citizens?).

The Sex Offense Mania began with deep roots in Leninist and Stalinist theories of revolutionary ‘justice’ (if you don’t agree with us, then that’s a crime and we shoot you), filtered through postwar Leftist thinkers like Herbert Marcuse (who took what he learned from his experience with the Nazis and applied it to American culture and society) and Franz Fanon (who studied oppressive European colonialist activities in Africa) and certain French literary thinkers who decided that nothing is actually real and so it’s all a matter of how you look at it, and that ‘rights’ were masks for ‘oppression’ and that human beings had no real nature or essence that could claim permanent protection (they would, instead, get whatever a Correct government chose to give them or take from them). And Antonio Gramsci – the idealistic revolutionary who wrote against the Fascist regime that had imprisoned him; his ideas were taken over by 1960s and '70s American ‘revolutionaries’ who saw little substantial difference and many politically useful (for their own purposes) similarities between the essence of the Fascist State and of American culture and society.

Those alien Universes of French-Revolutionary and Soviet Revolutionary jurisprudential theory, were imported into this country by radical feminists eager for any sort of conceptual justification for what they wanted to see happen. They mixed it almost naturally with Victimism, an international movement that began right after World War 2, trying to raise awareness of how many human beings are victimized by governments and established societal powers.

And within a decade or two, the Sex Offender Mania burst forth as certain elements of the radical-feminist cadres realized that it was the male’s most reliably predictable vulnerability – if only American law could be persuaded to treat sex like Soviet law treated ‘counter-revolutionary obstruction’.

The eager-to-please Beltway, hoping with intensifying desperation to keep enough small fractals of Identity-Politics voters happy, saw a way to keep both law-and-order right and victimist-left happy: both sides wanted a government-heavy response, the government needed to look like it was doing something, so The Sex Offender was duly constructed and the villagers and police unleashed.

When lawyers trained and practiced in the Military Justice System started interacting with lawyers trained in the Stalinist and Maoist legal dreck that was ‘critical legal studies’ – whose deconstructive effects gave much support to feminist and Victimist agendas … when those two Streams blended, when those two Poisons mixed, then – I would say – the Sex Offense Mania was simultaneously ‘militarized’ and ‘revolutionized’: the military element would do anything to guarantee the Outcome and the ‘revolutionary’ element would not accept that anything could get in the way of its desired Outcome.

The two were – and are – “sisters under the skin”. And, as I said, poisonous to the core.

NOTES

*A quick history of American military justice here.

From the time of the American Revolution, mirroring the English system, military commanders at war and in the field were authorized to conduct courts-martial for soldiers’ violations of the basic laws of war and military conduct: sleeping at your post, desertion, disrespect to superior rank, and so forth.

Given the exigencies of the battlefield and the need for military discipline – which was even more complicated on naval vessels at sea in foreign waters or on the high seas - it was recognized that the usual due process English civil courts had been developing throughout the centuries could not fully apply in the battlefield setting: the accused was brought before a senior officer, later another line officer serving as prosecutor and another line officer as defense, and that senior officer was judge and jury (and also often the commanding officer of all the other officers – prosecution and defense … so you can see how things might go).

In making the Constitution, Congress was so wary of military justice – such as it was – that while it gave power (in Article I, Sec. 8) to Congress to raise armies and to maintain a Navy and to “make rules for the government and regulation of the land and naval forces”, yet in the Fifth Amendment it very carefully (and grammatically) set forth what would be boundaries of the reach of military justice: “No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger …”

To anyone with a knowledge of English grammar – and the Framers would have to be most certainly included – the clear sense was that except in time of war or public danger military justice’s rather skewed practice was not to be applied to the land or naval forces or the Militia. You may recall old Western movies of the pre-WW2 era and even later, where the sheriff came into the fort looking for a soldier wanted for horse-thievery or murder in some civil jurisdiction, and the commander had no choice but to turn the soldier over to the sheriff (John Ford made this a secondary plot-point in 1950’s Rio Grande).

In the first decades of the 19^th century, pressure mounted to ease this sharp restriction. (See my Posts on this history here  and here .) By the end of the century the Supreme Court decided to wave the whole thing away by claiming that there were actually two ways of construing plain English grammar: such that a) Congress meant to include the army and navy along with the militia in that 5^th Amendment text (which, it acknowledged, was the usual way to interpret the grammar); or b) that despite the vital commas surrounding “or in the Militia” the restrictions only applied to the Militia. The Supreme Court decided that Congress a hundred years before had really meant to restrict only the Militia (talk about judicial activism – even the Rules of English Grammar!).

As the nation prepared to send large numbers of troops overseas for World War 1, the Army sought permission (and got it) to enforce the entire panoply of civil law on soldiers who would be deployed to Europe (since it would be too inconvenient to ship accused and witnesses back to the US for a civil trial). But the courts-martial were still hampered by the fact that officers serving as prosecutors or defense were still subordinate to the commanding officer who ordered the court-martial in the first place, as were any military witnesses and the officers serving as 'judges'.

After World War 2 returning troops (the Greatest Generation) raised such a ruckus about the lethal imbecilities of military justice that President Truman – himself an ex-Army captain of WW1 – had to order General Jimmy Doolittle to chair a blue-ribbon commission; which reported back in 1946 that Yes, things were really a mess and the troops were really worked up.

Truman ordered the military to make military-justice conform to American and Constitutional principles.

Slyly, the military dragged its feet – hoping that he would lose the 1948 elections and ‘go away’. Alas for them he won – and told them right after his election that he was still waiting for the new system. He got it in 1950 with today’s UCMJ. But after looking it over, and signing it into law (there were the Soviets, the Cold War, and a lot of other problems) he simply said to everybody around the desk that it still hadn’t solved the major problem at all.***

But, I note, it had made an entire new world of enterprise for - as Shakespeare would put it - "the lawyers", thereby creating a powerful new 'interest' for the ABA's members, which - of course - it was loathe to condemn.

But the Pentagon and its uniformed lawyers had come up with (or borrowed, really) a marvelous scheme. From Stalin’s Soviet Constitution of the mid-1930s (on paper more liberal than even the US Constitution) and his show-trials of the later-1930s, they took the inspired idea: so long as you put the right principles on paper, and toss in the appropriate furniture and scenery, but so long as you own all the players (judges, jury, prosecutors, investigators, witnesses, the defendant, and the defense counsel) … then you can have to all appearances a legitimate system while still being able to Control the Outcomes in your favor (which is what the military seeks to do by its very nature in all of its undertakings).  

Because traditional Western justice, of course, with its adversarial process, is always a crap-shoot: that is to say, you can’t ever guarantee the Outcome … unless you somehow rig it behind the scenes and under the table from the get-go. As even Stalin saw. And so you can see where the Constitution is, from a military justice point of view, verrrrrry unacceptable.

Many justification-balloons were launched by the military to justify the thing. One of the most striking is that while assigning enough Constitutional authority to do the house-keeping necessary to run the army and the navy, the Framers – implicitly and without any particular thought – intended for the armed services to ignore the very carefully spelled-out restrictions of the 5^th Amendment, which are some of the most vital and profound rights that the American Citizen was intended to enjoy. It’s hard to credit the Framers with such absence of mind, but there it is.

The MJ system has been challenged with remarkable frequency during the past two centuries. If you read my other Posts linked-to above, you can follow the mind-bending and almost self-satirical justifications the Supreme Court kept coming up with, until the middle decades of the past century.

As late as the 50^th anniversary Study of the UCMJ in 2000, the researchers still piously (but almost hopelessly) noted that for all the slick geegaws and ‘improvements’ over the prior 5 decades, the UCMJ system still hadn’t solved the problem of ‘command influence’: i.e. that the senior command authority that ordered the court-martial also owned all the players.

Which is precisely the core and indispensable principle operative in Stalin’s insight. And which now operates in the UCMJ on two levels: on the first level, there is the possibility that the commanding officer who orders the court-martial actually influences the outcome of the court-martial through actual words or deeds (including, though difficult to prove, the ever-serpentine wink or nod). But then there is a second level: at this point and because of the profound military mindset that when 'the command' initiates a 'mission' it goes in to win by all means necessary, then all the players simply presume that as a matter of course: if there is a command-order to conduct a court-martial, then it is the duty of all subordinate and ancillary personnel to ensure that the Outcome of the operation be a 'success'. It works in combat operations (sometimes) but you can quickly see how such a mindset is utterly incompatible with the Western and American concepts of adversarial justice .

And here we are again now with the Foster case and the 2009 Navy JAG study.

**And I wonder if even by 2009 or whenever since then she was hired, the canny Director of the SMART office realized that AWA was encountering deep resistance from the States (Ohio’s Supreme Court, you recall, last month found the whole scheme had tipped into the punitive and could not be applied retroactively) and would probably not be widely accepted by the States. The military would perhaps provide better job-security since the Mania can be more easily maintained in a hierarchal organization than in the civilian world where objections and dissent, however much ignored, can still be sustained. And of course, with the government bucks going away now, a job with the military is probably one of the safer bets for continued funding as well as status and ‘credibility’.

***That year, 1950, was also ominous for the development of NSC-68 , the top-level government National Security Directive in which the US decided that, in order to wage the Cold War, it would have to descend to the Dark Side (to use Dick Cheney’s later phrase) to counter the moves of Stalin’s USSR. As you may imagine, that US government and military mindset did not ‘go away’ when Stalin died, or even when the USSR  itself actually did ‘go away’. Indeed, it seems as if – the hell-hot irony – the US is now the largest and most practiced gamer of some of the USSR’s most sinister and lethal practices. As you can see all around you to this very day.

(In that regard, forgive me a purely historical aside: Mussolini had provided a couple of services to Italy in his better days: the trains ran on time for one thing. AND he had come up with a solution to the problem of the Mafia in Italy, especially in the South: he withdrew the police and sent in the army, and sent them in with orders to arrest and shoot any suspected Mafiosi of any rank. No investigation, no law, no due process, no courts - just bullets. He succeeded in reducing the Mafia infestation to almost nothing.

Alas, along came the up-coming Allied invasion of Italy from North Africa in 1943. Eager to give itself every advantage, the OSS (forerunner of the CIA) turned to the FBI where J. Edgar Hoover had developed more than a few under-the-table understandings with American organized crime. Hoover's contacts put together a list of operatives who would be glad to help and a contact list of their associates in the old country. They would help with 'translation' and smoothing the American path among Italians in the course of the up-coming  military operations.

Their price was the re-establishment of the Mafia over there. It worked rather well, and after the war a noted mobster was even assigned as an 'interpreter' and 'translator' to the headquarters staff of the Allied occupation of Italy. The Italian-American US army colonel who was the military go-between later somehow became an Overseer of Harvard University. Perhaps it was his knowledge of Italian antiquities.

The Mafia there sniffed the wind and realized that the Soviets or domestic Italian Communists might be no more reliable than Mussolini if they ever got political office, so the Italian mob became thoroughly anti-Communist. The Mafia here realized that Hoover's abiding interest was in stopping 'Communists' in this country (or anybody else that tried to upset the status quo) and became staunchly anti-Communist, backing up their political program with hefty donations and gifts.

The Italians themselves got the Mafia back. In the name of liberation.)

ADDENDUM

For most of this country’s history military-justice, for all of its Constitutional incoherence, kept to its private preserve, grinding out its activities only upon those Citizens who had put voluntarily signed up and thus put themselves within its range (well, then there was the matter of drafting people forcibly into the military and thus into the purview of military justice – but the Supreme Court finessed things by finding the system – more or less - constitutional).

Military justice lived as a shadow-thing. In the flush of the Reagan Eighties, as the now-iconic red suspender lawyers of Wall Street began making astronomical salaries, it was proposed that the UCMJ be extended to cover not only all active-duty military personnel, but also all reservists (in those days, very few ever saw active-duty the way that  has become so familiar post-9/11). This would have hugely expanded the writ of military justice and ‘business’ for the JAGs.

The formal pretext put forth was that in the Cold War era, even Reservists were only within minutes of being called to active duty and, anyway, as a member of the Reserves you were still an exemplar of all the wonderful things that the military was so you should have to live up to that responsibility all the time and be held accountable all the time.

It was brayed that since civilian law was doing such a poor job, and the military was so ‘efficient’, then military justice was actually the core model of how US justice should work (the military, in Reagan’s day, was seen as exactly the opposite of the ‘mess’ that civilian life had fallen into). The SO community might quickly realize what an ominous catastrophe would lie along that potential path.

But remarkably, it was the military Reservists themselves who instantly and definitively put an end to that possibility. They knew just how frakkulent the thing was, and what any human life would become if it were subjected to the eternal ministrations of military justice.

But in the next decade, in the Nineties, military justice suddenly found a way back to the Table: in the earliest national SO laws, the mantle of criminal authority was spread to embrace the military justice system: in place after place in the text of those laws it was most specifically pointed out that those eligible for Registration in the new schemes would include anyone convicted of some form of sex-offense through the military justice system.

So I cannot help but imagine that the ‘militarization’ of SO Mania law was not entirely an accident.

But, as the SO community now sees with increasing clarity, the essential incoherences of military justice, combined with the fundamental and essential incoherences of the entire SO Mania approach with its utterly Alien dynamics (for so long seated in the military justice system), have worked to wreck any ‘efficiency’ that militarization of the Mania Regime might have been expected to provide.

Worse, the insinuation of the military justice ‘approach’ to law – through former military lawyers now in prosecutorial or law school positions and even in political office – has contributed to the virulence of the derangements embodied in the Regime’s laws.


ADDENDUM 2

This article gives a grasp of what happens when the "Lieutenants' problem exerts its inevitable effects.

ADDENDUM 3

It’s even an open question whether the military-justice system’s ‘convictions’ (formally known as ‘awards’ – a much more cheerible term) can even qualify as criminal convictions.

Article III of the Constitution governs the Judiciary and it is on the authority of this Article and Branch that the criminal and civil courts are grounded, established, and sustained.

But the military-justice system is clearly merely a branch of military activities, which fall under Article II, the Executive – which is precisely barred from conducting its own ‘courts’ (reflecting the Framers’ abhorrence of, among other things, English courts such as Star Chamber where the ‘judges’ were for all practical purposes agents of the Crown whose task was to do the royal bidding).

Nor can it reasonably be presumed that in authorizing the Congress to make ‘rules for the regulation and governance’ of the military the Framers implied that Congress itself would have the right to set up some extra criminal-process contrary to the careful strictures laid out in the Constitution and the Bill of Rights, for which responsibility was assigned to the Judicial Branch through Article III.

Congress (Article I) therefore cannot set up its own criminal-justice system and then run it itself (similar to Parliament during the Protectorate) or assign the running of such a system to the Executive (Article II).

Thus you will come across the military assertion that its court-martial system is an ‘Article I’ or  ‘Article II’ court rather than an ‘Article III’ court.

But while that assertion sounds logical enough, it is the equivalent of saying that a railroad engine is simply an airplane without wings, without the capability of powered and guided flight, that runs on terrestrial rails rather than up in the air. Rather, the railroad engine is not an airplane at all, but a different beast altogether.

The military court and ‘criminal justice’ system is thus not a slightly different species of ‘airplane’ but rather a completely different species of beast altogether. And one that may well be considered as constitutionally-impossible to justify. (Although, in Stalin’s marvelous scheme, the railroad engine is nicely painted silver and with familiar airline logos to make it look, to the inattentive eye, as if it were pretty much just a wingless airplane. The Constitutional ‘furniture’ of American justice – independent judge, independent jury, independent investigators, independent witnesses, and independent defense counsel – are all placed on the stage just where they would be in an Article-III court proceeding.)

So there are verrrry legitimate grounds for questioning whether the military-justice system can bill itself or spin itself (to a cooperative or unthinking media) as just another ‘criminal justice’ system, sort of a Perry-Mason-in-Uniform sorta thing.

But with the very first SO Mania laws, as I have said in the text of this Post, the military was suddenly included as a ‘jurisdiction’ (along with Indian tribal courts and State courts and Territorial courts) whose court-processes were to be legitimately considered competent to produce Constitutionally-grounded criminal convictions.

Thus in the public mind – and in the minds of legal scholars and assorted commentators and ‘reporters’ – the military slyly insinuated its already dubious ‘criminal justice’ system as if the whole thing were just another type of legitimate criminal court.

This is more than an abstract point. The ‘efficiency’ of the military court system, weighted so horribly heavily in favor of the accusing government (that, of course, literally ‘owns’ all the key players involved), is precisely the prosecutorial ‘dampdream’ that sweetens the visions of both law-and-order Rightists and victim-friendly Leftists.

And when this mix was then fused together in the earliest SO Mania laws, a large though largely un-noticed step toward the undermining of the Constitutional Vision was accomplished, wearing the wig of patriotic military ‘efficiency’ for the Right and the wig of ‘victim sensitivity’ for the Left.

The SO Mania Regime is the first instance in American history where such a substantial fusion of so many gravely dubious legal assertions of Rightist or Leftist tinge were simply erected into major law and policy under cover of the dust raised by the ‘sex offense crisis and emergency’.

ADDENDUM 4

Let me give you a little bit of an idea of what it’s like trying to figure out the basis of the military justification for prosecuting the entire criminal code (and not just military-type offenses such as sleeping at your post, disrespect to senior authority or refusal to follow lawful orders, and so forth).

I had occasion to check “West’s Encyclopedia of American Law” (2^nd Edition, 2005), put out by the marquis legal reference firm, West’s.

There (vol. 7, pp.56-7) this putatively authoritative reference work states that the 1866 Supreme Court case Ex Parte Milligan (text of Decision here ) says that the Supreme Court there asserted and allowed that “the Constitution allows Congress to write rules and regulations to punish any member of the military when he or she commits a crime, in time of war or peace, in any location”.

Pass over in silence the fact that I doubt an 1866 document is going to refer to military personnel as belonging to either gender.

What piqued my concern was that a) I did not recall Milligan saying such a thing and b) what West’s writer says Milligan says is precisely what the post-1950 UCMJ supporters would very much like people to think it says.

So I looked at the text of Milligan again. Sure enough, at number 10 Milligan states that “Cases arising in the land or naval forces, or in the militia in time of war or public danger, are excepted from the necessity of presentment or indictment by a grand jury, and the right of trial by jury in such cases is subject to the same exception.” 

So IF you are willing to grant that making an exception to the Vth Amendment requirement for grand jury indictment and a trial by jury effectively authorizes the military prosecuting the entire civilian Criminal Code, then Milligan supports that.

Which is a big IF and an even bigger leap of inference, especially when you realize that this entire effort at ‘justification’ thus implies that the Congressional right to “make Rules for the Government and Regulation of the land and naval Forces” (Article I, Sec. 8) – that is to say, enforcing the old Articles of War and saying what color the uniforms should be and such – somehow was meant by the Framers to nullify the very careful requirements for criminal trials put down in the Vth Amendment, in the Bill of Rights.

So I checked the text of the Constitution itself.

And that text says: : “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

I have italicized the relevant bit there. But as you read the entire Amendment you see here what powerful protections the Framers clearly insisted upon providing. It is sketchy and dodgy at best to overturn the Vth Amendment merely on the huge leap of inference in getting from the right to say what color the uniforms will be to the right to dispense with the Amendment’s requirements and carry out ‘criminal process’ through military court, for non-military offenses.

But there’s more. You will notice that Milligan actually misquotes the Constitution. In the text of the Constitution there is an utterly vital comma placed just after “militia”, which serves to say that except “in time of War or public danger” both the land and naval forces and the Militia must hew to the Vth Amendment’s safeguards.

In Milligan – and West’s article curiously does not quote the text of the Constitution itself, but only the (erroneous) text of Milligan – the utterly vital comma is taken away, making the Vth Amendment’s requirements only applicable to the Militia. Which, as I said, is not what the actual text of the Constitution says.

What can the decent Citizen make of this oddity? That in 1866 there was a mistake in transcription? Surely it was only a single comma and mistakes do happen. But just as surely, the Justices must have reviewed the final draft of the Decision before signing it, and somebody would have had to notice it.

So that leaves us with the possibility that the Supreme Court in 1866 was already trying to weaken the Bill of Rights in this matter of military justice.

And here we are today with the military-justice system (with its Stalinist inspiration) claiming, as West’s writer faithfully parrots, that as far back as 1866 the Supreme Court had somehow approved its entire post-1950 gameplan.

And all of this becomes even more relevant when you realize that Sections 1031 and 1032 of the currently proposed military budget Bill effectively seek to do away with the Posse Comitatus Act of 1878, which prohibited the military from engaging in law enforcement in the country.

And for the SO community, the possibilities should be even more acutely disturbing.