Monday, December 5, 2011
H.R. 3435 and S. 1867: MILITARY SO STRATEGY
Two Sex Offense-relevant Bills have caught my attention, now somewhere in Congressional process. They both have to do with how SO matters are dealt with in the military.
I want to say right off the bat that in talking about SO matters in the military here, I am going to be looking at what I think is a large new twist in the overall Beltway-Advocacy SO strategy. Thus while you may or may not be directly interested in the military-arena of SO matters, what I am going to be talking about has relevance (it seems to me) for a new direction in national SO strategy generally, which perhaps reflects larger trends in the country.
Additionally, I think that these new military-related developments give an insight into the strategizing that seems to be going on – there are elements in the Beltway putting a lot of thought (such as it is) into these things.
It started in mid-November with a Congresswoman from the San Francisco area (Speier, Dem.) putting up a short Bill; article here. The Summary of the Bill put out by her office is here, and the text of the Bill (designated H.R.3435) is here.
This is a short Bill as these things go. But it demonstrates all the usual tropes: there is an “epidemic” of sex-crimes in the military, although – neatly – it is a “silent epidemic” (meaning you might not be able to see it but you can take advocates’ and legislative supporters’ word for it that it’s really there.
The Congresswoman’s office has been working on this for some months; a new local advocacy group, headed by a “long time human rights activist”, has been started up in her District; this long-time activist had previously served as the Congresswoman’s campaign director for a failed Lieutenant-Governor race in California in 2006. The organization calls itself ‘Protect Our Defenders’. The organization has also spawned a web site – it has a “media relations” division run by a local political operative – and that site has put up a number of videos of alleged victims who tell their stories.
The Congresswoman began making frequent speeches on the House floor outlining the huge and glaring problems of sex-assaults in the military (she has currently made at least 12 of them). She had lunch with the Secretary of Defense.
When she introduced the Bill in mid-November she quickly picked up 41 official co-sponsors, 12 of them from California and all 41 are Democrats. (Three weeks later she has 81, and all are Democrats.)
The Congresswoman says she is trying to build momentum “from the ground up”.
The problem, as she sees it, is that while there were 3158 allegations or complaints of ‘sexual assault’ (however defined, of course) in the military in 2010, only 468 were deemed worthy of some level of military-justice action or disciplinary action. One disappointed complainant reports that she was told by her command that she had had consensual sex and “then changed her mind”.
(A quick recall here of how the military-justice system works: a complainant-allegant reports her (or perhaps his) complaint to his/her immediate chain of command (at the company or battalion or ship level), and that command officer makes an assessment as to whether or not the complaint warrants either disciplinary action by that commander (referred to as Non-Judicial Punishment) or else refers the matter up to a higher-commander, who has the authority to initiate an actual military-justice investigation and can, if s/he decides, initiate a court-martial proceeding.
There are two levels of court-martial, Special and General, roughly corresponding to misdemeanor or felony-level criminal trials, although as always I strongly caution that all use of familiar civilian criminal-trial terms is verrrry iffy; the military justice system (see my recent Post and its Notes in the “Foster case” here) bears only surface resemblance to the Constitution’s required protections: it has the familiar furniture any civilian would recognize but the fundamental dynamics required in the Framing Vision’s concept of criminal justice are utterly undermined by the military need to Control Outcomes.
If the allegation goes that route to the higher-command, the Service’s military-investigation arm conducts an actual investigation, reports to the JAG (military lawyer) attached to the higher commander, and that report is examined by another officer on the higher commander’s staff who makes a final “Article 32” assessment and a recommendation to that higher commander as to whether the matter justifies the higher commander initiating a court-martial process. The “Article 32 officer” is the military equivalent of the civilian Grand Jury; clearly, the word “equivalent” is highly figurative, since s/he is hardly independent of the command authority of the higher commander on whose staff s/he serves … but then the entire concept of “independence” of the assorted players in the military-justice system is highly figurative to begin with, and that reality – as I have often said – was built into the system from the get-go in 1950.
That Article-32 officer’s recommendation may or may not be accepted by the higher commander him/herself, who has complete authority to initiate or reject the court-martial option, regardless of the Article-32 officer’s recommendation; so much for an independent and authoritative ‘Grand Jury equivalent’.)
The Congresswoman’s basic claim is that since so many of the sexual-assault claims are being turned-back at the lower levels or the higher levels of the system, then she wants to erect an entirely new bureaucracy within the military, separate for all practical purposes from the actual chain of command, for handling SO claims and allegations.
This new bureaucracy, with its own ‘czar’ and staff (can you hear the ‘jobs’ section of the orchestra swelling to a crescendo among the sex-offense advocates, bureaucrats, and ‘experts’?), will have complete, direct, and independent authority from the get-go, bypassing the command-structure of the military and actually independent of it. The actual military command structure will have almost zero discretion, since sexual-assault and SO cases will be taken almost completely out of their hands.
The closest historical analogy I can think of is the Soviet parallel command-structure of the Political Branch: there was in the Soviet military an entire second command structure, manned by ‘political officers’, that had authority to override military commanders’ orders and functions if the Political directorate decided that those purely military orders were not Correct and were not in conformity with the overall Soviet government and Party policies and philosophy. This was Lenin’s and Stalin’s way of making sure that the military remained for all practical purposes an arm of the Party-State.
Naturally, of course, one can also imagine that such ‘special sex offense’ courts (we have seen them tried here and there in American civilian criminal justice, although they are not as numerous as the special Domestic Violence courts) also function rather ominously close to the old English court of Star Chamber: a high court comprised completely of political creatures who were completely in the service of the Monarch, that would put its seal of approval on any verdict that the Monarch wanted to have happen.
The Congresswoman gives no thought or provision in her Bill to what the fiscal cost might be (or grow to become).
A few thoughts quickly come to mind.
The run-up and run-out of this Bill reflect clearly, in almost textbook fashion, the old and verrrry familiar gameplan that the SO community has seen since Day One: assorted ‘horror stories’ that are considered to be outrageous by legislative supporters, who then quickly introduce Bills to ‘solve’ the problem that they are immediately and thoroughly convinced exists.
All of the usual Questions that might arise in the mind of any prudent and reasonable dispassionate observer are side-tracked, ignored, or overrun and the matter immediately goes into the introduction-of-legislation phase.
The only thing missing is a wide media coverage, since matters military are usually more obscure to most reporters (unless they simply work off press-releases issued by – tah DAHHHH! – the advocates and the supportive and enabling legislators).
As I have always said, the simplest solution to this entire problem of ‘sexual assaults (however defined) in the military (to the extent that the problem actually exists) would be to have gender-separate units. In that single policy, the vast majority of these complaints and allegations would be avoided (with the exception – perhaps not insignificant to allied political advocacies – of same-sex sexual assault).
But this rather clear and commonsensical option is apparently not-Correct and utterly unacceptable to the radical-feminist advocacies now entrenched in the Beltway; you almost never hear this thought mentioned – let alone discussed seriously – by advocates, their legislative enablers, or the media (who may well be reading only advocacy-tainted press releases to do their ‘reporting’).
Thoughts of military efficiency and ‘operational efficiency’ have never been foremost in the minds of genderist-victimist agitators working to infiltrate the military realm. Indeed, from the get-go in the now so distant early 1990s the Correct mantra was that the USSR – that great and abiding Enemy – was gone and there were no other competitor-militaries on the planet, so ‘military efficiency’ could be sacrificed in this matter of ‘rights’.
(You can judge for yourself whether such a core presumption still holds nowadays, and whether one consequence (and not unforeseen) of all the genderist-victimist agitation and policy and legislation has been indeed a lethal contribution to undermining military operational competence. In the civilian realm, I would add, the equivalent of this presumption was that Productive-efficiency could be compromised and sacrificed in the economy in order to achieve the demands of the genderist-victimist Agenda … and again you can judge for yourself nowadays if that presumption has served the country and the economy well.)
And of course, all such agitation was spun as a matter of ‘rights’ (that trump everything) and of ‘outrages’ (ditto).
This new Bill also gives rise to the thought that if the military has now become saturated with female officers at all levels, then there must be more than a few of them who are not functioning Correctly, since this problem of un-avenged ‘sexual assaults’ in the military has grown worse instead of better even as the number and proportion of female military officers has grown.
It’s also possible that the military – which has to deal with ‘reality’ and ‘consequences’ in far more direct and immediate ways than in much of the civilian world – has simply been more robust in dismissing so much of the smoke-screen that so often hides the highly-dubious nature of so many non-stranger ‘sexual assault’ allegations generally.
The actual proposals contained in the Bill give clear evidence of what the advocacies’ Agenda is looking for.
First, the creation of a Sexual Assault Oversight and Response Office (and its necessary bureaucracy). This Office and its agents would take-over all sexual-assault allegations and complaints from the get-go. The military investigators would report to it, and not to the military chain of command.
Additionally, it would have the authority to re-assign any complainant-allegant to another unit to get him/her away from the alleged assaulter and to provide the now-customary comforts and consolations. This means that in addition to taking-over all ‘sexual assault’ (I will now use the abbreviation ‘SA’ for that term) cases from start to finish, it will also be able to interfere with manning and assignment policies.
If you think about it for a moment, it means that a unit-commander with X number of people assigned to the unit to carry out its functions will now suddenly have X-1, or if there are several simultaneous SA cases, X-2,3, or whatever number, and the other members of the unit will have to make up the increased work-load. This does not seem wise in light of current and probable military task-loads and work-loads, and it sets an awful precedent for interference in the military’s ability to conduct operations – let alone the consequences to morale among the remaining personnel who find themselves suddenly having to make up the work-load.
(All of this was obvious as early as the Gulf War in 1990-1991, when unit-commanders and ship-commanders were required to ship suddenly-pregnant females back to rear-areas or back to land; nor were they allowed to request replacements (such requests would provide demonstrable proof of the ill-consequences of mixed-gender units) and so ships and units had to go into an active war-zone minus a rather shockingly large number of assigned personnel. And all this was even before the USSR had collapsed.)
This new Czar-Office would also administer an SA ‘grievance’ hot-line for anybody in the military who chose to circumvent military structures and just cut to the chase.
It would also have the direct and immediate authority to “ensure that victims are given a place of safety and security, and a place where they can communicate their experiences”. You notice the old gambits immediately: the allegant is already a ‘victim’, and the therapeutic milieu of ‘safety and security’, and the vital old workhorse demand that the ‘victim’ can tell the vital ‘story’ without fear of doubt or contradiction or questioning. We have seen this – Lynne Henderson discussed this whole toxic mixing of the therapeutic and the criminal-investigative in her articles – in the push for a Victim Rights amendment.
Second, the Bill calls for the establishment of (yet another) Council at the Secretary-of-Defense level that would be comprised of at least two military judges and will include a Department of Justice representative who is ‘experienced’ in prosecuting SA/SO cases, another member “who has had experience advocating for the rights of those sexually assaulted in the military” and yet another member “who is experienced in working on civilian cases of sexual assault”. All to be appointed by the President.
As you can quickly see, this is basically the old genderist-vicitmist gambit, with all its dampdreams, now being run in the military setting.
It has the political benefit of enabling the President to keep a ‘base’ happy in a tough-election campaign. Ditto for the Democrats generally.
But it will be interesting how it plays out for the Republicans. Although they actually started the Victim bit in the Reagan years, they have also been leery of interfering with the military (although that has done little to stop the bipartisan political pandering to radical-feminism’s Agenda for the military).
But what this Bill is proposing is profoundly assaultive of the integrity of the military command structure. And especially at a time when the country is going to be relying on the military for a whole lot more of these ‘interventions in the (pick one or both: national or humanitarian) interest around the world that you would think this would give them pause.
Also, who knows if the Question might suddenly be given a chance for public exposure: to what extent has the admitted reduction in military competence and efficiency been the result of all this Agenda-pandering?
From a legal point of view, of course, we recently saw even the JAGs themselves expose the Congressional authorization (of hugely dubious legitimacy Constitutionally and legally) to switch the burden of proof onto the accused in military SA/SO cases (enacted as a short bit buried in the huge annual military budget bill in 2006).
Third, the Bill also calls for a Director of Military Prosecutions who would have the authority to order a court-martial regardless of what the local command decided. This creates an entirely second command structure for handling SA/SO cases in the military.
And as I mentioned in the Foster Post a couple of months ago, this now adds the frakkery of SO Mania Law to the already hugely-fraught realm of military justice.
This Directorate would also have the power to take cases out of the hands of the military and refer them to the Department of Justice. Now this is again a verrrrry significant demand because it directly breaks up the tight circularity and self-contained dynamic established in military-justice affairs with the erection of the Uniform Code of Military Justice (UCMJ) in 1950.
So while the military has in very large part gone along with the genderist Agenda foisted upon it by the government in the past 20 or so years, what is being demanded here is of an entirely different order of magnitude: the disassembling (‘deconstruction’?) of the military’s basic self-contained management of its operational affairs and its very command structure. This is a huge chunk for the SO Mania and the genderist-victimist Advocacies to try and bite off.
It reflects, I think, a certain desperation on the part of those Advocacy elements and I’ll talk more about that below.
Fourth, the Bill calls for the establishment of an SO database to be kept at the Pentagon for the purposes of the military tracking anybody who has come under SA/SO scrutiny; this demand would keep the database access limited to the military investigators and the SA/SO Czar and its assorted agents and bureaucrats.
BUT then the Bill goes on to add, fifth, that the Pentagon is to forward all the usual SO Registry information (now including biometrics and all the latest whizzbangs) to the Department of Justice “for inclusion in the National Sex Offender Registry”.
Now this is a ticking timebomb of no small proportions.
As I mentioned in my discussion of the military-justice system in the Foster Post, the military has been rather careful not to invite too much attention to its system. There is good reason for this: the entire profound Constitutional Question remains very much conceptually open: does Congress even have the power to authorize the military (an arm of the Executive) to conduct criminal-process and trials of accusations for violations of any of the entire civilian Criminal Code?
The military formally won this ‘authority’ in 1916 when it claimed that it would be impossible to send all the accused and witnesses to any serviceman’s alleged violation of civilian criminal law back to the States for a civilian criminal trial; hence the military (then going overseas for World War 1) was ‘authorized’ to use its already iffy justice system to prosecute Citizens (albeit servicemembers) for any criminal law violations. (See Addendum 2 below for further.)
This wall was breached – to the military’s and the JAGs’ apparent advantage and with their support – in the very first SO Mania laws: anyone convicted of a Sex Offense would be eligible for the State registry. A convictee by courtmartial would, upon release from the military and any imprisonment, have to go to the State in which he would reside and submit to its SO Registration process; later it was arranged that the military would send notice to the inmate’s designated State of residence so as to give that State’s Registration Board a heads-up.
Thus the military-justice system’s ‘convictions’ slyly insinuated themselves into the public mind as ‘criminal convictions’ (although the huge Constitutional Question remains very truly open, even though the Supreme Court has done its heroic bit to justify the whole thing).
But the responsibility for SO Registration remained, as it Constitutionally has to, with the States and it is conceivable that a State would examine the military record of trial and decide that the potential ex-serviceman registrant was “ineligible” – such are the annoyances of the Constitution in SO Mania matters.
Hence the so-called National SO Registry (named, as always, after a victim, Dru Sjodin) is actually only a federally-administered collection of all the State Registries.
But what this Bill wants to do is to give military convictions a formal authority to directly Register its SO convictees.
Which also then burdens the State with the responsibilities of tracking these individuals and also removes from the States their authority to determine for themselves who does (or perhaps does not) qualify for their Registries. And that opens up a whole universe of unsavory possibilities and Constitutional concerns. (Perhaps, for example, the federal government might volunteer to take the burden off the States by directly monitoring any of their citizens who bear a military ‘conviction’, and you can imagine what that further ominous possibilities that precedent might open up.)
This current Bill, H.R. 3435, piggybacks itself on a small rider stuffed into the annual military budget for 2009, sponsored by Mr. Hunter of California, at Section 563 (the current Bill, H.R.3435 has the wrong Section reference, claiming it to be Sec. 583 – which sorta says a lot about how much thought and care goes into crafting Bills nowadays). By amazing coincidence, Hunter also included the set-up of an in-house Pentagon SA/SO database (see here for the text of the 2009 military budget, and scroll down to Sec. 563).
A short, hasty, deeply-fraught and clearly ill-considered Bill this may be, but if it gets into law then it opens up vast and lethal possibilities.
But there are not only the Constitutional and fiscal problems with the Bill’s proposals.
The alliance initially entered into at the outset of the SO Mania Regime by the feminist-victimist advocacies and the military-justice command, with the approval of the usually ‘patriotic’, military-supportive law-and-order Right, is now being abrogated.
What, I ask myself, would drive the SO Mania types to make such a gambit?
My thought is that as the SO Mania is now starting to run out of steam – and its ‘aura’ is wearing off – in the civilian world, the SO Mania types are turning to the military as the marquis venue for their efforts to keep in business and keep the ball rolling.
If there is any cash left, the best chances of getting chunks of it are through things-military and through the military budget. This is also probably one of the best bets for continued employment for the many bureaucrats, attorneys, and advocates who are sensing that the States’ budgets (and even the federal monies to the States) are becoming quickly tapped out even as in the civilian world the public is beginning to ask more questions or at least entertain more doubt about the SO Mania Regime than the advocacies would prefer.
A desperate federal government in an election year is probably the best site in time and space to set up shop. And the military budget is the largest remaining cash-cow in the federal Santa-sack.
But things get worse. And it shouldn’t be too much of a surprise to anybody familiar with the schemes and strategies of the SO Regime’s Maniacs.
Now passed by the Senate (having passed quickly through secret Committee sessions) is the huge annual military budget bill, S.1867. (See here for the text of the Bill and scroll down to Sec. 551 and following)
This Bill has garnered much national attention because of its Sections 1031 and 1032 that rather largely leave the door open for the President having the authority to declare anybody anywhere, US Citizen or not, in foreign war zones or here in the ‘homeland’, as a ‘terrorist’ and hence imprisonable by the military without trial or due process (or perhaps even Habeas rights).
But buried in “Subtitle E: Military Justice and Legal Matters Generally” is Section 551: “Reform of Offenses Relating to Rape, Sexual Assault, and Other Sexual Misconduct Under the Uniform Code of Military Justice”.
And what you have in Sec. 551 is a gambit familiar to the SO community from recent efforts to have the FBI redefine its annual reporting definition of ‘rape’ to include all forms of sexual assault of any severity (or lack of it) whatsoever. You may recall the recent Post here “As the Cream Runs Out” where I discussed current efforts to have the FBI change its reporting-definitions (but not the actual elements of the law in the Criminal Code).
What you now have in S.1867 in this Sec. 551 is precisely the changing of the elements of the rape charge in the UCMJ to include any and all incidents of any and all sexual mis-activity whatsoever. Everything is now subject to a Rape charge.* And any ‘sexual act’ act or contact with any part of the alleged victim’s body qualifies. Nor, if I read the thing correctly, is the victim’s testimony or even complaint necessary – anybody can bring the complaint or charge (including, no doubt, the bureaucrats and agents of the new Sex Directorate proposed in H. 3435).
Additionally – and I am here not going through the entire list of ‘reforms’ in this Section, although they include pretty much all of Speier’s menu in her short Bill H.R. 3435 – we proceed to “Subtitle F: Sexual Assault Prevention and Response”, where Sec. 564 cloaks communications between the complainant and the Sex Czar’s agents in ‘privilege’, meaning that the defense cannot have access to them in trying to defend the accused.
The only good news is that the whole thing is not retroactive, so – if you recall the Navy’s problems as outlined in the Foster Post – all of the past 20 years’ (at least) of military convictees are not going to be retroactively dragooned into this thing.
Thus what the SO Maniacs did not apparently consider possible to achieve in civilian criminal law, they have now managed to get done in military law.
(And we still have yet to see whether the Supreme Court will actually strike down as unconstitutional that 2006 provision that transfers the burden of guilt to the accused in military SO/SA cases; presently, it stands as part of military law.)
As I have often said, the (putatively ‘liberal’) National Nanny State and the (putatively ‘conservative’) National Security State have always had similar core interests. Which is why the SO Mania Regime so closely resembles and utilizes so many hallmark elements of totalitarian and police-state tactics and jurisprudence, and why the SO and Domestic Violence Mania Regime(s) have been able to garner such bipartisan support from Leftists and Rightists.
Well, that’s what I found in these two Bills (Speier’s has been sent to committee; but the Budget has passed the Senate and awaits House action; there is a rumor that the President may veto the provisions for military-imprisonment of Citizens by Presidential fiat, but that may be posturing – and even if a veto is imposed by the White House, it can be overridden. And I doubt anybody in the Beltway has even given serious thought to the monstrous corruptions and corrosions included in the SO sections).
All of this strikes me as very significant for SO matters but also for the country itself.
First, if this is erected into military law and allowed to stand, then since technically and formally military-law is still considered as valid ‘criminal law’, this entire plague-load can begin to become insinuated into civilian law. Either advocates can approach legislators in States waving the military-system as ‘federal precedent’ for ‘reforming’ State SO laws and jurispraxis, or former JAGs who are now District Attorneys can do that heavy lifting in front of State courts, or DOJ seminars for local law enforcement and prosecutors can start to suggest what a nice thing this ‘reform’ would be for civilian law and enforcement, or they can start teaching this additional load of drek in the law schools, or all of the above.
And the mainstream media will continue to read their official press releases and interview the ‘experts’ and bureaucrats who grant them ‘access’, and lap the whole thing up without blinking an eye.
In terms of the politics of advocacy, and of the SO and radical-feminist and victimist professional Advocacies in this particular matter, it seems to me that – as I said above – the SO Mania is now going to be taking up primary position in the military-justice system. And my Foster Post indicates just what a lethal double-whammy that entire dynamic will constitute for the civilian criminal justice system and for the Framing Vision itself, as embodied in the Constitution. **
In terms of the national political ‘alliances’ that have enabled the Mania Regime(s) from the get-go, there is much to consider. The shift to the military justice-arena, itself hugely fraught and dubiously legitimate, now has reached a point where the Advocacies must turn against the military command structure itself.
This is not something I can see the military accepting, even though the entire present high-command cohort has made itself hospitable to so many prior Demands from many Agendas. The reason why fire-trucks come when called, quickly and efficiently and competently, is that the Fire Department is a paramilitary organization (to some extent) and doesn’t accept the subjective and personal whims of this or that fireman when ordering an emergency response. There is a command structure based on a command philosophy which itself is grounded in the stern and urgent realities of the type of disasters and emergencies for which the Fire Department was created in the first place.
Ditto, and even more so, in the matter of the military command structure.
And, of course, and especially given the deep mushiness of the criteria by which one must try to decide if any offense occurred at all (and some schools of ‘thought’ insist that if you don’t immediately and fully accept the allegant’s ‘story’ then you are simply ‘re-victimizing the victim’), then the ‘moral hazard’ of the whole thing becomes clear: anybody who doesn’t like her present assignment can simply make an allegation and instantly qualify for speedy re-assignment somewhere else (and God help the commanding officer who denies the request). The possibilities for abuse of this process are not at all small. Ditto the consequences for military operational readiness and competence as units and commanders suddenly find themselves short-handed.
This Agenda and its Demands strike at the heart of military competence and readiness, and whatever validity there might ever have been to the early 1990s advocacy claims that the US in the post-USSR era could afford to sacrifice operational readiness and competence (I recall one supporter putting the acceptable figure at 30 percent, however you figure that), that validity no longer exists. And, looking back at 1991 or so, will most likely never exist again.
Just how far the military will accede to all this is a very large Question indeed.
It will depend to some great extent on just how willing the Republicans are to support such a lethally dangerous precedent (and as everyone knows, this sort of thing will only intensify if its initial Demands are met). Genuine and actual military competence can only become more urgent in the future, and clearly it will be impossible to conduct operations if commanders are deprived of authority and even of reliable knowledge of the manning-levels (and morale) of their units and ships.
I am no fan of military-justice, especially as it has evolved since 1950.
So this abrogation of the alliance between military command and military justice on the one side, and of the Regime Maniacs on the other side, poses for me the type of problem, like the war between Iran and Iraq, that prompted Henry Kissinger to say in an unguarded moment: “It’s a war you’d like to see both sides lose”.
But in a Larger sense, there is no doubt in my mind that this new development in Mania strategy bodes to create even more damage to vital national interests, and to the integrity and legitimacy of the Law, and to the very adherence – in any real sense – of this nation to its Framing Vision.
And it is nothing short of the most repugnantly ruthless cynicism, I would say, to claim that it is all necessary to ‘protect the troops’: the vast (male) majority of the troops are now to be placed under a threat as omnipresent as any but the most overt hostile enemy action, and under a threat that resembles – alas – nothing so much as the threat posed to any Soviet-era troops and the Soviet military by the presence of those Political Officers whose job was not to win wars or conduct efficient operations but merely to ensure that Political Correctness was enforced in the service of the Regime.
So much remains to be done.
NOTES*As best I can make out – and it’s like trying to work through old Soviet ‘philosophical’ tomes – Catharine MacKinnon, noted feminist ‘thinker’ for whom ‘radical’ feminism is the only true feminism, was working toward this since the early 1970s. She encapsulated the idea in her 1989 book “Toward a Feminist Theory of the State”, implying that rape-by-penetration is a dumb definition because it views rape only from the male’s point of view. From the female point of view, one doesn’t have to be penetrated to feel ‘raped’. You see where this can go and is going if erected as an element of criminal law.
**In this regard, I would like to suggest that people not look at the Constitution as a literary ‘text’, whereby – according to the dictates of postmodern literary Theory – the intentions of the author of a piece of fiction are not to be considered more important than the subjective reactions and ‘feelings’ of a reader.
Rather, I would propose that the Constitution is not accurately to be treated as a ‘text’ of fiction, but as an Owner’s Manual or Maintenance and User’s Manual.
Which would mean that you would no longer be so cavalier with how the Constitution is ‘interpreted’. Indeed, who would fly an airline whose maintenance crews treated or were required to treat the manufacturer’s instructions and manuals as ‘texts’, with which the individual aircraft mechanic may or may not choose to agree?
I am putting a few somewhat more specific political thoughts down here.
Clearly the Dems are now reaping the whirlwind. At this point the sitting political class has either drunk the Kool-Aid or are now trapped – especially in a difficult election year – in a lethal embrace with their most radical ‘bases’. And those bases themselves are now making increasingly strident and perhaps desperate demands.
Radical feminism (which – alas – has become synonymous with ‘feminism’) and victimism are now themselves agitated by the increasing decline in the government pork supply which has fueled their Great Day At The Beach for decades, and consequently are both a) urgently in need of tangible re-assurance and b) eager to lock down their ‘successes’ or at least keep their gravy train going on whatever track remains available.
And for all of them, the pols must see the dual ‘solution’ of intensifying i) the SO (and now SA) Mania ii) in the military as a simple and most efficient response.
This assessment, of course, reflects the bankruptcy of ‘deal politics’ in the Age of Identity in this country: the Deal is judged not by its contribution to the commonweal nor even in relation to any integrity, coherence, or efficacy in relation to the Framing Vision, nor even in terms of how a decades-sized load of such ‘deals’ might cumulatively crush the increasing fragile structure of the pols’ own legitimacy (which is an element that’s no longer ‘off the table’, as the Beltway players like to say).
These ‘solutions’ rather quickly and virulently reveal the baaaad consequences that potentially existed within them from the get-go. Leading to yet another round of witless pandering and grossly irresponsible Legislating.
Do these people not worry about the common-weal, or at least the problem of their own legitimacy – integrity is no doubt A Bridge Too Far – at all?
This extension of the SO/SA Mania not only into the military but against the very military operation command structure itself simply spreads one very lethally bad plan into a vital area already deranged by a prior lethally bad plan; the SO/SA Mania Regime on top of the Stalinist-inspired UCMJ core dynamics of 1950.
The reader somewhat given to the history of ideas might note the eerie and ironic symmetry: the Gramscian-inspired Leninist Mania ‘advocacies’ are assaulting the Stalinist-inspired UCMJ … as the genuine elements of American law and politics embodied in the Framing Vision, and the productive elements of the American economy, all shudder and slow and fill, compartment by compartment, reflecting with intensifying vividness the profoundly lethal consequences of the Beltway pols’ eagerly importing multiaxial Maoist “cultural revolution” and the Gramscian undermining of the “hegemonic culture” forty Biblical years ago. Funny how the conceptual night moves.
And so America becomes the last stage for the whackulent, virulent hashing out of Marxism-Leninism, and – in a final and perhaps fatal indignity (courtesy of the Beltway pols, Rightist as well as Leftist) – its enablers and advocates are now scrumming each other for what little remains to be grabbed, secure in their own delusion that it has all been ‘liberation’ and ‘reform’ and that they are still major Shapers and Players on the cutting edge of History and Progress.
And this comes to resemble not so much the final self-dissolution of the USSR, which blood-soaked monster actually went out with a world-historical dignity and order in the service of a long-hoped-for Possible Future. Rather, I think that the Beltway in its declining agitations is (to borrow a trope from the shocked Dowager Queen during the British Succession Crisis of 1937), coming to resemble “Roumania”.
Forty Biblical years of the most dangerous political toying with the demons of Revolution and ‘cultural de-legitimization’ and Totalitarian Praxis will now play out as a cash-status-and-power-addled official scrum on the National Lawn of some Balkan or banana republic from the bad old days. (And allow me to suggest that you give yourself this Christmas present early: watch the Marx Brothers 1933 masterpiece “Duck Soup”.)
Please forgive the injection of my political opinions. You can see why I put them into an Addendum. But so much remains to be done.
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” (2nd 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 only becomes more vital and relevant when you realize that Sections 1031 and 1032 of the currently proposed military budget bill effectively propose to do away with the Posse Comitatus Act of 1878 which prohibited the military from engaging in domestic civilian law enforcement.
And for the SO community, the possibilies should be even more acute.
An article from December 13 reports that there is notable objection to the military-justice SO/SA provisions that were quietly snuck into the proposed military budget Bill.
An article from November 28 actually takes a skeptical look at Speier’s gambit.