Reservist may be punished after war protest

[CommunityEditor]

A corporal in the Individual Ready Reserve is facing punishment after being photographed wearing his uniform in an anti-war demonstration and using profanity with a superior officer after the photographs were published.

Cpl. Adam Kokesh, 25, an Iraq war veteran, will face an administrative discharge hearing June 4, where he may have his honorable discharge changed to an other than honorable. His IRR commitment was set to be completed June 18.

The Corps said he violated rules on two fronts: for wearing his uniform while participating in a political event, and for disrespecting a superior officer.

The issue goes back to March 19, when Kokesh, dressed in his desert cammies along with other members of a Washington, D.C., chapter of Iraq Veterans Against the War held a mock patrol from Union Station to Arlington National Cemetery, Va.

A Washington Post story featured the demonstration, describing how participants carried imaginary assault rifles, pretended to take sniper fire and casualties and made mock arrests. Kokesh was in at least two photographs printed with the story. He removed his insignia before participating in the event.

Kokesh received an e-mail March 29 from a major at MobCom informing Kokesh he may have violated the Corps’ uniform regulations.

“Specifically, you may have violated the law while wearing all or part of your Marine Corps uniform while engaged in political demonstrations or activities,” the major wrote in a letter provided by Kokesh. “As a member of the Reserve Component, until 18 JUN 2007, the law restricts your wearing of the uniform at certain events.”

“I was offended,” Kokesh said. “I was surprised that they were applying the [Uniform Code of Military Justice] to the IRR. But regardless of whether it did or not, I was just deeply offended. I was deeply offended that the time of an active-duty major was [used] to investigate me for political activities.”

Kokesh said as much in his reply to the major, where he openly admitted that, after a nonjudicial punishment, he was reduced in rank from sergeant to corporal for bringing a pistol home from Iraq. He said the gun was not a war trophy, but one that he bought from an Iraqi police officer he’d been working with as a civil affairs noncommissioned officer. Shortly after his NJP, he was honorably discharged and declared Code 4, ineligible for re-enlistment.

“As we waste our time on such petty issues, our fellow Marines continue to die in futility in an occupation that our military is not adequately prepared to handle,” Kokesh wrote in the e-mail. “While as a citizen, I have my responsibility to do all I can to ensure that our noble weapons of democracy are employed only in the best interests of our nation, you still have a responsibility to accomplish the two goals of Marine Corps leadership: 1. Mission Accomplishment 2. Troop Welfare. I fail to see how reminding me of my ‘obligations and responsibilities’ helps you achieve either of these.”

“So no,” he continued, “I am not replying to your email in order to acknowledge my understanding of my obligations and responsibilities, but rather to ask you to please, kindly, go f--- yourself.”

His name was followed by the line “Proud F---ing Civilian.”

Kokesh said when he wore his uniform to the demonstration, he did so without his rank and insignia because he wanted to make it clear he was a veteran.

“I didn’t even think that if I wore them, I would get in trouble,” he said. “My understanding was that in the IRR [uniform rules] don’t apply to you.”

Marine Corps spokesman Lt. Col. Scott Fazekas said that even those in the IRR fall under the Corps’ rules.

“It’s very dangerous that they are going after him for his speech,” Lebowitz said. “It’s a huge First Amendment issue because the military’s actually going after a veteran based on his political speech. This is the first in a number of cases. We need to draw a line in the sand now. Basically, this reeks of politics from the military’s point of view.”

“It’s a great challenge and I think a lot of weight has been placed on my shoulders,” Kokesh said. “What’s at stake here is really the right to the freedom of speech for thousands of people who are serving in the IRR. I want people to know that I love the Marine Corps. I always have and I always will and that is why I am so deeply offended to see that it has been turned into a political tool.”


Full article: http://www.militarytimes.com/news/20...kokesh_070531/


Is stripping rank of a veteran for activity as a civilian part of the "deal"? Is this a freedom of speech issue or a violation of Corps rules?


Adam Kokesh while he uses a pretend gun to "detain" volunteers protesting the Iraq war with him March 19 in Washington, D.C.

[CommunityEditor]

Related:

Marine case raises issues for vets in protest (http://www.armytimes.com/news/2007/0...otests_070531/)

[DonK]

Slightly OT...

If you watched Alberto Gonzales testimony you might remember a muscular guy sitting in the audience who kept track of the number of times Gonzales said "I don't recall." His name is Adam Kokesh. He's an Iraq war vet who was honorably discharged last Novemeber after a deployment to Fallujah. Now he's a full time anti-war protestor. Well, now he's being prosecuted for participating in a protest and the military has him on a fast track to a dishonorable discharge.

There is something seriously wrong here. Kokesh, a man who actually served in Iraq, is being persecuted for exercising the rights he fought to defend. But Sanchez, a shameless self-promoter who exploits the uniform for personal profit, still gets to call himself a marine.

Link to Kokesh's blog:
http://kokesh.blogspot.com/2007/05/p...h-rejects.html

[William Wilson]

I went to his website yesterday and posted some questions about the whole thing. Comments are pre-screened, and my comment has not appeared. There are some anomalies in his account that I'd like to see cleared up. I'm wondering if my comment hasn't been posted because my questions might reveal that there is less than meets the eye to all of it.

First off, he's not being prosecuted. They're apparently holding a hearing to determine whether he should be discharged from the IRR under other than honorable circumstances. A prosecution is a punitive action for violation of the UCMJ; a discharge is an administrative action. They are two very different things. You might recall that I predicted that Sanchez will not be prosecuted, but rather will be discharged under OTH circumstances.

Kokesh protested while a member of the IRR. My understanding is that an IRR member is not subject to the UCMJ's provisions for anything he does when not in a drilling status. However, there might be an exception that applies to someone who wears a military uniform at a political event. I know that there was some comment about military personnel (active duty, I believe) who appeared at the Republican Convention of '04 in uniform, and that it prompted a reminder from the Pentagon that it's prohibited by regulation.

I don't know if there's a similar reg that applies even to IRR members. That was one of the questions I asked. Also, I asked for more detail on the so-called "plea bargain" that Kokesh's lawyer says Kokesh was offered. I suggested that they publish the complete text of the offer. I'm curious as to what the USMC wanted from him. I have very mixed feelings here; while I think Kokesh is certainly free as an IRR member to say anything he wants, I get really nervous when people do that sort of thing in uniform.

I don't care which side of an issue they're on, either. I think the uniformed military ought to be extremely careful about combining politics and the uniform. I realize that this viewpoint is vulnerable as hell to a retort about the American Legion and its activities, and in the brazenly political speeches being made by various Bush generals these days. I don't like that stuff, either. So, I guess the bottom line is I'd like to know more about the Kokesh case and exactly what it's about.

As far as Sanchez goes, remember that his current Kuwait/Iran follies are just that: He claims to be there. That's all. I don't believe his claims. I would be very surprised to learn that he has actually insinuated himself into a military unit of his betters. On that one, I'm a Doubting Thomas. I'll have to stick my finger into the wound and feel around for the bones before I believe the guy is doing what he claims. I'd advise that you not make any assumptions about him just yet.

[DonK]

Originally Posted by William Wilson

Kokesh protested while a member of the IRR. My understanding is that an IRR member is not subject to the UCMJ's provisions for anything he does when not in a drilling status. However, there might be an exception that applies to someone who wears a military uniform at a political event. I know that there was some comment about military personnel (active duty, I believe) who appeared at the Republican Convention of '04 in uniform, and that it prompted a reminder from the Pentagon that it's prohibited by regulation.

But this isn't limited to the '04 RNC. The White House has made it a matter of policy to use uniformed active duty servicemen at GOP political rallies. How many times have we seen Cheney or Bush stand in front of uniformed servicemen while they give a political speech? Here's another example that shows Rep. Marilyn Musgrave (R-CO) at a GOP dinner with a uniformed serviceman.

http://www.truthdig.com/images/earto.../musgrave.jpeg

The GOP uses uniformed servicemen as props all the time. What really stinks about this case is that the rule is being selectively enforced.

a bunch of mess

[GOPeagle]

Originally Posted by DonK

Here's another example that shows Rep. Marilyn Musgrave (R-CO) at a GOP dinner with a uniformed serviceman.

http://www.truthdig.com/images/earto.../musgrave.jpeg

The GOP uses uniformed servicemen as props all the time. What really stinks about this case is that the rule is being selectively enforced.

So true. But the double standard is even worse. The guy currently being prosecuted wasn't in his full uniform like those at the GOP rallies. I believe he only had on fatigues and no patches. Another guy at the protest was let off scott free just because he claimed ignorance to the regulation and promised not to do it again.

There is an amazing documentary about similar stuff (but much more widespread) during Vietnam. I highly, highly recommend it: http://www.sirnosir.com/

This case appears to be more viceral and emotional in nature than fully reliant on the law.

Two points readily arise in analyzing this legal case. One, as a civilian with no military obligations save reporting for duty when recalled, this IRR reservist is alternatively liable to the provisions of 18 U.S.C. 702, a federal law which prohibits the unauthorized wear of a U.S. military uniform or distinctive part thereof. However, as a second point, what the IRR reservist did was speech based and therefore under the constitutional protections of the first amendment. A previously decided Supreme Court case is on point and therefore should shield this reservist from overzealous prosecution.

In Schacht v. United States, 398 U.S. 58 (1970), a case concerning the 18 U.S.C. 702 prohibition against unauthorized wearing of a uniform of the armed forces (or a distinctive part thereof), the Supreme Court held that the wearing of a United States military uniform by an amateur (non-military) actor during the presentation of an anti-war skit on a street outside of a draft induction center was within the authorization of 10 U.S.C. 772(f) permitting actors to wear uniforms in theatrical productions and therefore such action was not a violation of 18 U.S. 702.

To my mind, if the Court found an anti-war skit using a uniform a form of constitutionally protected speech, so too should be an anti-war protest (theatrics) merely using a uniform without insignia (such uniforms are available in most public shopping center thriftshops or more directly in military surpus shops standing in the shadow of military bases, not to mention on-line).

Therefore binding federal precent should prohibit and restrain overzealous military officers from leveling such ridiculous and malvolent charges against this veteran and IRR reservist. I believe the existence (and no doubt knowledge, if the USMC listens to their JAG officers) of this Supreme Court case may explain the manner in which these charges are being brought against this reservist by what I would characterize as the dishonorable and unconstitutional actions of offices at HQ USMC.

W. P. Jones
Durham, NH

[William Wilson]

Please keep in mind that Kokesh is not being prosecuted. If the account on his website is accurate, he's the subject of an administrative action. There is a bright-line distinction between these two things, and it is meaningful. I have posted some questions for Kokesh on his website, but it is moderated and neither my questions nor any answers have appeared. I am skeptical of his account, but answers to my questions could change that.

In particular, my understanding is that when someone is a reservist in a non-drilling status, that person is the legal equivalent of a civilian except that he or she must keep the military informed of his or her whereabouts in case the military wants to recall the member to active duty. I am not aware of any regulation prohibiting a non-drilling reservist from wearing a uniform at a protest. I've asked elsewhere (Military.com) if there's such a regulation and whether it is applicable to IRR members. I haven't gotten any answers yet, but my posting there is only a few hours old.

There are two other anomalies, one of which just occurred to me this morning. The first anomaly is that Kokesh's website refers to the IRR as the "Inactive Ready Reserve." I think (but again, I could be wrong) that only the Air Force uses this terminology, and that the other services refer to the IRR as the "Individual Ready Reserve." If someone could say for certain which is correct, I'd appreciate it. As many of you know, I'm one of those detail people; if you care about the little things, you're more likely to get the big things right.

The other anomaly concerns the hearing itself. I believe that it had to have been requested by Kokesh himself. From what I learned during my inquiries about Matt Sanchez, I think administrative actions are confidential unless requested otherwise by the target.

Beyond that, I'd like to know what "plea bargain" the USMC offered to Kokesh. Internet server space is so cheap as to be functionally free, so I'd like to see him post all of his correspondence, both to and from the Marine Corps, on this matter.

[William Wilson]

I did some more research on Kokesh's case.

There are regulations that allow the military to downgrade his discharge for his activities while a member of the IRR. In my opinion, the furthest the USMC could go with a straight face is to give him a general discharge. If they separate him under OTH conditions, I'd read it as a vindictive move against a political dissenter. The regulations are as follows:

E3.A2.1.3.2.3.5. Conduct in the civilian community of a member of a Reserve component who is not on active duty or active duty for training may form the basis for characterization Under Other Than Honorable Conditions only if such conduct affects directly the performance of military duties.

Such conduct may form the basis of characterization as General (under honorable conditions) only if such conduct has an adverse impact on the overall effectiveness of the service, including military morale and efficiency.

E3.A3.1.5.2. Transfer to the IRR. Upon transfer to the IRR, the member will be notified of the following:

E3.A3.1.5.2.1. The character of service upon transfer from active duty or the Selected Reserve to the IRR, and that the character of service upon completion of the military service obligation will be the same unless specified conditions established by the Secretary concerned are met.

My guess is that the Marine Corps is upset with Kokesh for demonstrating while wearing a uniform with the USMC's identifiable camo pattern. To me it's a stretch given that Kokesh wears a beard and thus would never be confused as an active duty Marine. On the other hand he knew enough about the regs to remove patches, etc., so I'm a bit puzzled by his insistence on wearing USMC camo. As I wrote earlier, I'd be interested in seeing the full text of his correspondence with the Marine Corps, and whether what he referred to as a proferred "plea bargain" was actually a request not to wear USMC camo at political events.

To me, his website's reference to the USMC's appeal hearing as a "prosecution" borders on a lie. In fact, it is Kokesh who requested the hearing, which concerns an administrative action not a prosecution. I don't view the Marine Corps as squelching his free speech, but rather as telling him that if he associates USMC regalia with his political activism that they'll be pissed off and retaliate.

The hypocrisy, of course, is that I haven't heard of any services taking similar steps against IRR (or active duty) personnel who wear military regalia to pro-war events. As for the Musgrave event mentioned above, after the outcry over that, the Pentagon reminded all service personnel of its regulations concerning the use of military uniforms by active duty personnel. There isn't a directly comparable regulation that applies to reservists, but I think what I've cited would suffice.

As for the level of discharge, an OTH discharge would hinge on a finding that his protests "affect directly the performance of military duties." That's a stretch. A general discharge hinges on a finding that his protests have an "adverse impact on the overall effectiveness of the service." If I were arguing for the Marine Corps, it's an argument I could make without being ashamed of myself.

I'd note that the correspondence from Kokesh to the Marine Corps has been insolent, to put it mildly. In my view he has not operated in good faith. I strongly support his right to protest the war, which I also oppose, but I can't say I blame the USMC for its response -- as long as the result is a general discharge. If they go the OTH route, they will have gone too far.