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Iraq vet may be prosecuted for exercising First Amendment rights

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Iraq vet may be prosecuted for exercising First Amendment rights

Old 06-02-07, 10:57 PM
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Iraq vet may be prosecuted for exercising First Amendment rights

VFW backs vet in trouble over protest

WASHINGTON - The nation's largest combat veterans group on Friday urged the military to "exercise a little common sense" and call off its investigation of a group of Iraq war veterans who wore their uniforms during anti-war protests.

"Trying to hush up and punish fellow Americans for exercising the same democratic right we're trying to instill in Iraq is not what we're all about," said Gary Kurpius, national commander of the 2.4 million-member Veterans of Foreign Wars.

"Someone in the Marine Corps needs to exercise a little common sense and put an end to this matter before it turns into a circus," Kurpius said.

Marine Cpl. Adam Kokesh had already received an honorable discharge from active duty before he was photographed in March wearing fatigues — with military insignia removed — during a mock patrol with other veterans protesting the Iraq war.

A military panel in Kansas City, Mo., will hold a hearing Monday to decide whether he should be should be discharged from service and, if so, with what type of discharge.

Col. Dave Lapan, a Marine Corps spokesman, said Kokesh is under administrative review because he wore his uniform at a political event, which is prohibited. And, Lapan said, when a senior officer told Kokesh that he violated military regulations, Kokesh used an obscenity and indicated he would not comply with the rules.

"It's the political activity that is prohibited, not the type of event that it was," Lapan said. "If it had been a pro-war rally, it would still have been a violation."

The panel could recommend an honorable discharge, a general discharge or an other than honorable discharge. Kokesh could not be given a dishonorable discharge, which generally results from a court-martial. The final decision would be made by the commanding general.

A second Marine who was at the same event was also called about the violation, but told the officer he was unaware he was breaking the rules and said he would not do it again, Lapan said. That Marine has not been called to an administrative hearing.

Kurpius said the possibility of receiving a less than honorable discharge from service could threaten educational and other benefits Kokesh is eligible to receive from the Department of Veterans Affairs. The action might also prevent Kokesh from future employment opportunities that require a security clearance, Kurpius said.

"We all know that people give up some individual rights when they join the military," Kurpius said. "But these Marines went to war, did their duty, and were honorably discharged from the active roles. I may disagree with their message, but I will always defend their right to say it."

Kokesh received his honorable discharge after one combat tour in Iraq, but he remains part of the Individual Ready Reserve, a pool of former active duty service members in unpaid, non-drill status.

Kokesh's attorney, Michael Lebowitz, has called the investigation an effort to stifle critics of the Bush administration's Iraq policy.
http://news.yahoo.com/s/ap/20070602/...li3hfDeFBI2ocA

Here is a picture of Cpl. Kokesh at his political rally:



Oops! That's not him. That's a bunch of servicemen at a Glen Beck rally who are not being prosecuted. This is him:



Wait -- my mistake. That's Marine Sergeant Brandon Forsyth being introduced by Representative Marilyn Musgrave a a GOP fundraiser last year. Sgt. Forsyth is not being prosecuted.

This is Cpl. Kokesh for real:



He is being prosecuted.
Old 06-03-07, 12:03 AM
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Obviously selective application of the rule. There was a minor uproar last year when the Bush admin was supposedly organizing participation of Iraq vets at congressional re-election events. No prosecutions, I'm guessing.

I understand the spirit of the rule in terms of keeping the appearance of a non-partisan military. But as far as I'm concerned, you serve your time, keep and wear the uni, no strings attached. Really, go nuts. Pro-war rallies, anti-war functions, free small fries at Burger King, bar p-magnet, you name it. Kind of seems like a small perk in the grand scheme of things.
Old 06-03-07, 12:22 AM
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ummm he isnt being prosecuted for excercising his First Amendment rights he's being prosecuted because he wore his fatigues at a political event...something thats against the law.

How is that being prosecuted for excercising his first amendment rights? He isn't being prosecuted for protesting its because he isnt allowed to do it in fatigues. Rules are rules. Don't like em? Don't bother joining the military then.
Old 06-03-07, 12:32 AM
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Obviously, the military sometimes cherry-picks these things for partisan reasons.

But consider a case where the military may have been reckless in their conduct that have resulted in the death of a recruit, e.g. bootcamp & bad drill instructor. The recruit's family wouldn't have much of a chance to sue the government despite the obvious negligence.

Remember that Law and Order episode about the bad bulletproof vest?

If political speech restrictions are subject to strict judicial scrutiny, does it really apply to members of the military? What about local police officers or firefighters?
Old 06-03-07, 12:44 AM
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I often wonder how many people even know much about the first amendment

definitely seems like one of those things that what people except as the truth is much closer to talking points from either side of the political spectrum as opposed to the honest truth of it
Old 06-03-07, 01:54 AM
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The 1st Amendment is constantly being amended. Many don't realize this. When you're in a war period where the government is extremely paranoid, it is not surprising our government cracks down on anything that it is against.
Old 06-03-07, 02:41 AM
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Originally Posted by IMRICKJAMES
ummm he isnt being prosecuted for excercising his First Amendment rights he's being prosecuted because he wore his fatigues at a political event...something thats against the law.

How is that being prosecuted for excercising his first amendment rights? He isn't being prosecuted for protesting its because he isnt allowed to do it in fatigues. Rules are rules. Don't like em? Don't bother joining the military then.
Equal Protection then (look at Jason F's photos)?

I don't think that 'joining the military' means a lifetime forfeiture of constitutional rights especially after discharge (at least without some restrictions). If the UMCJ said, by joining you could no longer bear arms in a well-organized militia, they wd almost certainly be in violation of the constitution and wd be overturned. The rationale for no political speech in uniform may be based upon the rationale that no-one can, individually, represent the views of the army. But that if one were to modify the uniform to get rid of the identifying markings (insignia) that rationale wd no longer apply (since the indiviual could not be mistaken for an army spokesperson)and then becomes a 1st ammendment issue. Don't know whether such an arguement wd be sucessful, but its not too difficult to imagine it being made.
Old 06-03-07, 04:37 AM
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Originally Posted by TimJS
Equal Protection then (look at Jason F's photos)?

I don't think that 'joining the military' means a lifetime forfeiture of constitutional rights especially after discharge (at least without some restrictions). If the UMCJ said, by joining you could no longer bear arms in a well-organized militia, they wd almost certainly be in violation of the constitution and wd be overturned. The rationale for no political speech in uniform may be based upon the rationale that no-one can, individually, represent the views of the army. But that if one were to modify the uniform to get rid of the identifying markings (insignia) that rationale wd no longer apply (since the indiviual could not be mistaken for an army spokesperson)and then becomes a 1st ammendment issue. Don't know whether such an arguement wd be sucessful, but its not too difficult to imagine it being made.
how exactly can you forfeit a constitutional right you never had in the first place? Rules are rules. This doesn't really seem like a first amendment issue to me except for the fact lawyers could probably make a first amendment case out of anything. If I worked at foot locker and they told me not to wear my referee shirt outside of foot locker I wouldnt do it, even though I could probably spend the whole weekend on a huge bender of booze and strippers and find some lawyer who could turn it into a first amendment rights issue. Seriously, I think getting a first amendment rights case is like a lawyers Super Bowl. I managed a minor league baseball stadium before where one of the rules for game day employees was after they were off the clock they could stay around the stadium, hang out, have some food, watch the game, but had to take their uniform off. Was I going against the first amendment? Do they have a constitutional right to wear their uniform even after I tell them to take it off?
Old 06-03-07, 08:05 AM
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Violation of first amendment rights?

Certain civil liberties are denied to members of military, and they always have been.

Hell - certain civil rights are denied federal employees, and they're civilians.
Old 06-03-07, 09:27 AM
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Originally Posted by JasonF
http://news.yahoo.com/s/ap/20070602/...li3hfDeFBI2ocA

Here is a picture of Cpl. Kokesh at his political rally:



Oops! That's not him. That's a bunch of servicemen at a Glen Beck rally who are not being prosecuted. This is him:



Wait -- my mistake. That's Marine Sergeant Brandon Forsyth being introduced by Representative Marilyn Musgrave a a GOP fundraiser last year. Sgt. Forsyth is not being prosecuted.This is Cpl. Kokesh for real:



He is being prosecuted.

I wonder why? Is there some military law that might make one different than the other?

Article published Mar 9, 2006
Marines: Two troops did nothing wrong
By LINDSAY RENICK MAYER
[email protected]

The uniformed troops who appeared at the Larimer County Republican Party's Lincoln Day Dinner last weekend did not violate military code, said a spokeswoman for the Marine Corps Headquarters' public affairs office.

"I don't think there's any trouble to be had," said the spokeswoman, who declined to give her name, citing protocol. "It's a touchy issue because lots of honorees are being invited to things like this. It's a shame people are trying to turn it into more than that."

Organizations from both parties have been asking military members returning from Iraq and Afghanistan to attend their events to be honored, and the Marine Corps will turn down those requests if the troops are expected to speak, act in an official capacity to assist with the event or endorse a party or candidate, the spokeswoman said.

Strictly being honored at an event, however, is not against regulations, she said.


Officials at the Pentagon deferred to the Marine Corps for a ruling on the appearances.

The Fort Collins Coloradoan ran a photo on Saturday of U.S. Republican Rep. Marilyn Musgrave introducing Marine Sgt. Brandon Forsyth, in uniform, at the organization’s Lincoln Day Dinner on Friday night.

Political writers and bloggers across the nation are accusing Forsyth and the other uniformed Marine at the event of violating a Department of Defense directive that limits their participation in partisan political events while in uniform. Many have pointed to this incident as evidence that the Republican Party is making a collective effort to use U.S. military members as public relations props.

“The thunderous sustained applause (the troops) received was just a way for these people to thank them for all they’ve done for the country,” said Ed Haynes, former chairman of the Larimer County Republican Party, who attended the event. “No politics came up in any conversation I had with them.”

Skip Morgan, a retired Air Force colonel and military law attorney based out of Colorado Springs, agreed that as long as the two Marines did not endorse a candidate or a party, they were not violating any rules or regulations.

John Jones, who served in the military and is chairman of the Larimer County Democratic Party, however, questioned the Marine Corps’ interpretation of the code.

“I would want to know exactly why they think it’s OK, because the military code of justice I read says it’s illegal,” Jones said. “It was inappropriate even for them to be invited to a partisan event. These soldiers fight for American people, not just the Republican Party.”

The Larimer County Republican Party removed the photos of the Marines from their Web site on Monday at the behest of the men, who did not want to be harassed, said Larimer County Republican Party chairwoman Nancy Hunter.

Neither Marine could be reached for comment.


As far as Corporal Kokesh landing in the shit, I think you can hear the splash richt...about...here:

Col. Dave Lapan, a Marine Corps spokesman, said Kokesh is under administrative review because he wore his uniform at a political event, which is prohibited. And, Lapan said, when a senior officer told Kokesh that he violated military regulations, Kokesh used an obscenity and indicated he would not comply with the rules.
Sorry, but when you're in the IRR, they still own your ass.
Old 06-03-07, 09:39 AM
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how exactly can you forfeit a constitutional right you never had in the first place? Rules are rules.
Yeah, rules are rules. And if they violate constitutional rights, they are 'unconstitutional' rules. This is not shyster-talk; its pretty fundamental.

And citizens of the US have those rights from the moment they become citizens (at the minimum), there are circumstances where one may temporarily surrender some rights for employment and these circumstances are subject to judicial review. If someone started a business and as a condition of employment said that the potential employee must forever surrender their rights granted under the Bill of Rights, it would probably not pass review. There are clearly exceptions, but the ones which carry over past the association would recieve a great deal of scrutiny.

Certain civil liberties are denied to members of military, and they always have been.

Hell - certain civil rights are denied federal employees, and they're civilians.
After their terms of service are up?

Except for secrecy issues, I can't think of any reason that anyone should have the constitutionally guaranteed right of freedom of religion or the right to bear arms should be abridged permanently as a condition of employment. I think the same thing should apply to speech. The UCMJ is constitutional, however, the application of its terms is subject to review.
Old 06-03-07, 09:42 AM
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Everyone knows this has NOTHING to do with what they wore and everything about speaking out against the war
Old 06-03-07, 09:45 AM
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Originally Posted by TimJS
Yeah, rules are rules. And if they violate constitutional rights, they are 'unconstitutional' rules. This is not shyster-talk; its pretty fundamental.

And citizens of the US have those rights from the moment they become citizens (at the minimum), there are circumstances where one may temporarily surrender some rights for employment and these circumstances are subject to judicial review. If someone started a business and as a condition of employment said that the potential employee must forever surrender their rights granted under the Bill of Rights, it would probably not pass review. There are clearly exceptions, but the ones which carry over past the association would recieve a great deal of scrutiny.
Sorry slick, but when you join the military there are several constitutional rights you give up.




After their terms of service are up?
He was in the Individual Ready Reserve. They still owned him for (usually) six more years. At any time during that period, he could have been called to active duty

Except for secrecy issues, I can't think of any reason that anyone should have the constitutionally guaranteed right of freedom of religion or the right to bear arms should be abridged permanently as a condition of employment. I think the same thing should apply to speech. The UCMJ is constitutional, however, the application of its terms is subject to review.
Old 06-03-07, 09:46 AM
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Originally Posted by IMRICKJAMES
I often wonder how many people even know much about the first amendment

definitely seems like one of those things that what people except as the truth is much closer to talking points from either side of the political spectrum as opposed to the honest truth of it
Ah, irony. Sweet, sweet irony.
Old 06-03-07, 09:49 AM
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For those of you who agree with the government's actions here, do you believe there's ANY chance that they'd prosecute someone who had been discharged but still subject to IRR for going to a pro-war rally? Just curious.
Old 06-03-07, 10:04 AM
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Originally Posted by crazyronin
Sorry slick, but when you join the military there are several constitutional rights you give up.
When the terms of service are up, the 'several constitutional rights you give' up are limited by what is constitutional and are subject to review. Or are you gonna tell me that the military can tell a soldier he can no longer excercise the right to bear arms after discharge. Sorry Slick, but that's bullshit.

Originally Posted by crazyronin
He was in the Individual Ready Reserve. They still owned him for (usually) six more years. At any time during that period, he could have been called to active duty.
The status is critical. I don't know that your interpretation is correct (I expect that cpl Kokesh's defence will say it is not).

Originally Posted by crazyronin
Witty comeback. If you think up anything relevant to whether the UMCJ is extra-constitutional, please post, otherwise...
Old 06-03-07, 10:10 AM
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Originally Posted by TimJS
The status is critical. I don't know that your interpretation is correct (I expect that cpl Kokesh's defence will say it is not).
I will draw your attention to the second to last sentence in the original article.

Kokesh received his honorable discharge after one combat tour in Iraq, but he remains part of the Individual Ready Reserve, a pool of former active duty service members in unpaid, non-drill status.
RIF
Old 06-03-07, 10:11 AM
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So just to clarify, the rule is that you may not wear the uniform at a political event, not that you cannot attend and say whatever you want. The exception is that, in line with the uniform rule, you are asked not to identify yourself as military at one of these events, even wearing civies. But otherwise a soldier's speech is not restricted in these cases.

So I don't think the 1st Amendment is the issue as much as selective enforcement. And despite the point made regarding the fundraiser, I think these instances are close enough to treat equally.
Old 06-03-07, 10:19 AM
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Originally Posted by crazyronin
I will draw your attention to the second to last sentence in the original article.

RIF
Look, you made a statement about his status and what it means. All I am saying is that his defence will probably not concede both the points you stated. As I said, the status is critical I have tried to preface all my remarks to reflect that once terms of service have concluded, this is a 1st ammendment case.
Old 06-03-07, 10:24 AM
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Originally Posted by Mad Dawg
So just to clarify, the rule is that you may not wear the uniform at a political event, not that you cannot attend and say whatever you want. The exception is that, in line with the uniform rule, you are asked not to identify yourself as military at one of these events, even wearing civies. But otherwise a soldier's speech is not restricted in these cases.

So I don't think the 1st Amendment is the issue as much as selective enforcement. And despite the point made regarding the fundraiser, I think these instances are close enough to treat equally.
I think you would have a case under Equal Protection, but from a legal POV you might actually have a stronger case saying that the specific rule enforced in this specific way abridged the rights granted under the 1st ammendment.

I am not asaying that such a line of reasoning is sure to prevail, but it certainly is not a clear cut case where 1st amendment considerations are immaterial as IMRICKJAMES implied.
Old 06-03-07, 11:06 AM
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Originally Posted by IMRICKJAMES
I often wonder how many people even know much about the first amendment

definitely seems like one of those things that what people except as the truth is much closer to talking points from either side of the political spectrum as opposed to the honest truth of it

Yeah, I'm sure JasonF doesn't know jack-shit about the 1st amendment.
Old 06-03-07, 11:08 AM
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Originally Posted by wildcatlh
For those of you who agree with the government's actions here, do you believe there's ANY chance that they'd prosecute someone who had been discharged but still subject to IRR for going to a pro-war rally? Just curious.

Exactly.

I think some people need to read up on content speech restrictions (whether defined by law or by application) and the 1st amendment.
Old 06-03-07, 12:07 PM
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Next time follow the rules.
Old 06-03-07, 12:21 PM
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Originally Posted by Red Dog
Exactly.

I think some people need to read up on content speech restrictions (whether defined by law or by application) and the 1st amendment.
This is a legitimate question because I'm curious. If the military makes the case that any participation in uniform at a political rally causes potential damage to the military through an appearance of bias, wouldn't that create a situation in which a "restriction" makes sense? Of course, I mean this only if the rule is applied evenly. According to the rule, you can say anything you want at any event you'd like as long as you're not wearing the uniform. The whole issue (if applied correctly) is the representation of the military and not the content of the speech.

I don't agree with it, as I mentioned in my post above. I think they should be able to do whatever they'd like in the uniform they earned the right to wear, but I guess I'm just struggling with the constitutional aspects.
Old 06-03-07, 12:22 PM
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Originally Posted by Red Dog
I think some people need to read up on content speech restrictions (whether defined by law or by application) and the 1st amendment.
Exactly.

In particular, I am not aware of any restriction on free speech that is not viewpoint-neutral being upheld. The military regulation prohibitting wearing uniforms is viewpoint-neutral as written, but it's certainly not viewpoint-neutral as applied, and that should be enough to get Cpl. Kokesh's prosecution thrown out of court.

I think the ban on military personnel appearing at political events is probably, on balance, a good thing, and it's certainly defensible from a Constitutional standpoint if applied in a viewpoint-neutral manner. But selectively prosecuting individuals who speak out against the war strikes at the heart of the First Amendment.

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