Written by Elizabeth Moon –

Ritual Disclaimer: I’m not a lawyer, and no longer am on active duty in the military.  On the law–an amateur’s looking stuff up and reporting on it.  On the military–a veteran’s opinion.

There’s been a lot of chatter on social media about whether this or that retired or separated military personnel can be recalled to duty for a crime committed after separation, and thus court-martialed if the crime is one that calls for that.  (There are lesser “administrative” punishments that are not courts martial.)

1. No civilians who’ve never been military are subject to the UCMJ and thus cannot be court-martialed. R- told me about a case he heard about in the military law part of his R.O.T.C. classes: civilian wife shot her military husband on the base…in Germany.  German law enforcement refused to handle it.  Military law *couldn’t* by law try a civilian in a court martial.  He never heard the outcome, but probably the woman was sent to the States, to be tried in their “home of residence.”
2. All active duty military personnel are subject to the Uniform Code of Military Justice, the UCMJ, whether they commit a crime in uniform or not. Murder your spouse’s supposed lover when you’re on leave–you’re still on the hook with the UCMJ. The rules for reservists and retirees are different depending on which branch you’re in, because the laws establishing the reserves were different. This article explains some of the complications.
3. No “never served” civilians are subject to the UCMJ and cannot therefore be court-martialed.
4. The military has the option, with any crime committed in a civilian context, but falling under one or another headings of the UCMJ, to either proceed to court-martial or allow that crime to be handled by the civilian court system. That decision is made on a case-by-case basis usually, and the military judicial system is in contact with the civilian judicial system. The ruling may come from as far up as the Secretary of Defense, after consultation with the President, or as locally as a unit commander who chooses to take an offense to court martial or handle it as an administrative matter (within the limits as defined in the UCMJ.)

So what does this mean for active duty military personnel, reserve military personnel, retired reserves, retired military, etc?  The legality of calling someone back to active duty for the purpose of court-martialing them is complicated by every variable in the book: age, active/active-reserve/inactive reserve/retired-reserve, retired, pay status, branch, and the elusive “good of the service.”  The decision involves politics, sometimes international politics. Sometimes the military needs to court-martial someone; sometimes they need to let a civilian court take over.

When my husband was in R.O.T.C. in college, a case was described in the military law part of the course.  A civilian woman killed her military spouse on the base…in Germany.  The German government refused to try her: she was the Americans’ problem.  The military *could not* try her: she was a civilian.  Neither legal entity wanted the case.  (He wasn’t told what finally happened; my guess is she was arrested by military police–who can arrest civilians–and transported back to the US to be handed over to civilian police there.)

Why would the military want to court-martial someone who is subject to the UCMJ instead of turning the case over to local authorities, when the offense occurs off-base? Two primary issues: the effect on other military personnel if the person isn’t sent to court martial, and the effect on the civilian population in that area.  If there’s concern that other military personnel will break discipline if the offender isn’t court-martialed, or if relations between military and the civilian government are so bad that military personnel believe they can’t get a fair trial in a civilian court, the military will want to hold onto the case.  On the civilian side, there can be concern that if the military does not court-martial the offender, the civilian population will assume the military doesn’t care about the offense, and worsen relations.

The same two primary issues are at work when the military chooses to relinquish the case to civilian justice. How will the troops react, and how will the civilian population (and its officials) react if the military demands to try it, and if instead it chooses not to. Relinquishing a US soldier/sailer/marine,airman to a foreign civilian justice system for trial is a serious matter  Relinquishing one to some US court systems can also raise serious concerns.

This is why it gets political.

So the simple answer for military and ex-military personnel involved in the January 6 assault on the Capitol isn’t that simple. In the majority of cases I’ve seen mentioned, and particularly for anyone separated from the service after adverse legal judgments *in* the military, forced return to service and court-martial rather than civilian court judgment would not happen. Most fit into the category of “civilians” and were not in uniform or acting as if they were regular military. In the case of the serving Marine officer who was charged only with striking a policeman in the Capitol (though other charges might be pending), the Marines turned him over to civilian authority (who didn’t jail him, this Marine vet mutters.) I hope they yanked his security clearances. I personally wish he had been made an example of by the Marines, but orders may have come down from DOD.

Then we come to Michael Flynn, ordinarily given his courtesy title of “General.” I refuse him that title, because of his actions and words before and since the insurrection, including last week. In my opinion he broke his oath of fealty to the Constitution and the American people long before January 6, even before suggesting that Trump impose martial law.  For instance, he attended a QAnon “Digital Soldiers Conference” in Atlanta in September 2019, and on July 4, Independence Day, 2020, Flynn tweeted a video of himself leading others in an oath to QAnon.

Taking such an oath is, to me, proof of treason, and his actions intending to incite people to join him in anti-Constitutional and anti-governmental actions are proof of conspiracy to commit sedition.  DOD has declined to question him about his most recent act of what I consider treason, when Flynn stated, in answer to a military person’s question why the US couldn’t have a military coup as Myanmar had this spring, “No reason; I mean, it should happen here. No reason. That’s right.”  He has since denied these words, spoken as he spoke them, mean what they mean. That he actually said there was no reason for a coup.  But those aren’t the same words in the same order in the same breath pattern.

If ever a former military officer deserved to be hauled in, court-martialed, and sentenced to death for treason (still a possibility in the military, not in civilian federal courts), Flynn does.  He turned against this country years ago, and has been effective in creating disunion and fomenting violence.  However: unless there are drastic changes in the chain of command, which would have to start with the president, he won’t be tried in a military court.  Will he ever be tried in a civilian court for the crimes he’s committed? Unclear. I certainly hope so.

The reasons given by one law firm for preferring civilian courts in all the January 6 cases involving military personnel seemed weak to me when I read them, though I understood their reasoning.  Trump’s abuses devalued the civilian court system, with the combination of McConnell in the Senate refusing to allow any of Obama’s appointees to be considered, and shoving through anyone Trump named, including two Supreme Court Justices who are neither one worth the trouble to spit on.  (Kavanaugh’s worse, but Gorsuch ALSO lied to Congress in his confirmation hearing.) To regain the public’s respect and trust, the justice department and the courts need to handle cases deriving from January 6th’s attacks on the Capitol promptly, and clearly in every legal way.  I agree that to regain the trust of the rest of us, all the courts, including the Supreme Court, must defend the Constitution, especially the right of all three branches to be what they were intended to be, not blurring the responsibilities.

Earlier in May, Lawfare blogger Joshua Braver argued that sedition and conspiracy to commit sedition–though easily chargeable under that law–should not be the point of entry for the serious crime committed and explained why: the wording is too broad, and tightening the particular charge would be difficult without endangering activities most of us find less serious than sedition.  I find that somewhat persuasive but not entirely.  His preference for the crime to be charged is the statute, 18 U.S.C. § 2383, Rebellion and Insurrection. Again, I have to defer to those with more legal knowledge anyway, and I’d be reasonably happy to have Mike Flynn in shackles with either, except that “Rebellion and Insurrection” carries a maximum sentence of ten years.  And I’d still like treason to stick.

And I want the DOJ to start handing down indictments for one of these: treason, sedition, rebellion and insurrection, instead of the hand-spanking charges of trespass or resisting arrest–everyday charges for ordinary crimes committed by everyday people–not conspirators, not doing material harm to the survival of the country. They were all demonstrably part of a conspiracy…incited by others, who still have not faced charges. That needs to change.

Postscript from reading LAWFARE today: a bill now edging toward a vote, and with bipartisan support, will if it passes make substantial changes in the law surrounding courts martial.  So if anyone’s planning a novel set in the future US military, read https://www.lawfareblog.com/lawfare-live-combating-sexual-assault-military, before writing.

The Texas Legislature and the governor infamously outlawed the teaching of critical race theory in public schools. We’ve commented about this earlier, so there is little need to continue beating on this drum forever, but there is a corollary benefit to the teaching of exceptionalism in the classroom.

For those of us that have been in the classroom for years, we already know the truth. The teaching of American exceptionalism has been going on for as long as we can remember. The bill to stop the teaching of critical race theory is not about stopping it. It’s about not letting it start. However, the thoughts really don’t end with preventing talk of racism. That’s only the start of this whole thing.

It’s a subtle thought process that permeates our politics. A lot of it involves “bothsidesism” that has infested political discourse for some time now. The idea is that we really shouldn’t involve ourselves with picking sides because both parties are corrupt and ineffectual. That’s how populists get a hold of the masses. They convince you that they alone can solve every problem, because no one else is capable of doing it.

The exceptionalism plays into this in a ruthless way. The founding fathers were great men. They were almost perfect in their virtue and their intellect. They were the smartest men that ever lived and were honest to a fault. Their solutions were genius and no one could ever duplicate what they were able to do.

See, that’s the whole deal. If we create the illusion that those men were superhuman then no one could ever match up. Solutions to the problems of our day are out of our grasp. At least, those in government are incapable of doing it. Therefore, we should stop trying. We should leave it up to big business to  solve our problems.

Most of us know not a lick of this is true. First, the founding fathers were men just like all men. Yes, they were smart, but they had their own foibles. They had their own disagreements. They had their fair share of scandal. They overcame all that and still came up with something. Yet, even that doesn’t go far enough. We know that what they came up wasn’t perfect either. In the world of exceptionalism that’s the whole ballgame.

When we acknowledge the obvious flaws with those that came before we also acknowledge that flawed people can solve today’s problems. When we acknowledge the disagreements the framers had we can acknowledge that opponents today can overcome those same disagreements. People are people and always have been. That’s the secret they really don’t want you know.

This was written by Fenway Fran – a founding member of my band, Bitchin’ Betty and the Sequined Backhoes.  She moved to Washington state and I’ll be damned if anybody knows why.

It’s Pride Month, rainbow flags are flying high. Here in the Other Washington (the state), even our little downtown of several blocks sports the colorful banners. We live on the cusp of the state’s Cascade east/west divide. Our end of the county is deep purple, but you need to drive just a few miles east to be in MAGA country.

Moses Lake is an oasis in central Washington. A family was motoring on the lake, their boat decked out with Pride flags, when they were harassed by two men and a woman on another boat. At first, the flag fliers thought the people were yelling support, but as they got closer, the woman was flipping them off, and they were yelling about gays and flags. Then they raced around the flag boat half a dozen times, screaming their fool heads off, and finally sped away when they noticed one of the Pride guys had his phone out. That’s when Karma hit big time. As they raced away, their boat EXPLODED! And they were rescued by…the Pride Guys.

The account that made the WaPo is fantastic, complete with video and quotes from the Pride Guys.

Our favorite make-up lady, RNC Chair Ronna McDaniels, is whining publicly again.

Republican National Committee Chair Ronna McDaniel excoriated the Commission on Presidential Debates in a letter on Tuesday, threatening to advise any future Republican nominee against participating in general election presidential debates unless significant changes are made to the commission.

Before I begin reading the news story, I knew for a damn fact that they wanted to make the debate impossible because Republicans don’t have policy or a platform. There’s only so many times you can give your enemies silly names and say patriot and beautiful without beginning to sound like bully with limited verbal skills.

But, here’s the deal. They think that the people who moderate the debates are all leftwing partisans. I’m pretty sure they will demand that Tucker Carlson host all the debates, and General John Kelly on the nights Tucker is getting his hair done.

They are also upset that during last the last election they shut off the microphone of the person who wasn’t speaking.  That was so unfair to their candidate, who talks all the time.

And, here’s the big one.

At one point, the letter lauds Trump for “his background in television” because it led him to realize that the acrylic glass shields the commission was using to combat the coronavirus would cause the candidates to see their reflections once the stage was lit.

“Had it not been caught by the President of the United States, the CPD’s unforced error would have caused a surprising and awkward distraction for both candidates once the cameras started to roll,” she writes.

Okay, first of all, it wouldn’t have bothered her candidate at all because vampires can’t see their reflection.  Second of all, her candidate is overcome with his own beautiful when he sees himself.  Yeah, it’s awkward but definitely not a distraction.

So, I guess I’m back to what I suspected first.  No policy or platform.

Former National Security Advisor and Slimy Sack O’ Sludge Michael Flynn is now trying a cute stunt with this:

Here is the video of former national security advisor Michael Flynn saying that he thinks a coup like the coup in Myanmar should happen in the US. pic.twitter.com/7mGYjfXg18

— Mamie (@MC_Hyperbole) May 30, 2021

He gave an eight word answer.

It’s taking him 101 words, three words in all caps, for total reversal of what he said.

Damn, that should be an Olympic sport. All it took was a couple of parenthesis and now he’s claiming the exact opposite of what he said.

That’s some real special talent. No wonder Trump picked him.

This is likely an unpopular opinion. It’s just a feeling I can’t seem to shake on days like these. Look on Facebook and other social media and you can see all kinds of messages today. All of them seem innocent enough. We are honoring those that have lost their lives serving our country. There is absolutely nothing wrong with the message. I guess I have an issue with some of the messengers.

These are some of the same people that bring you Christian messages. I’ve never trusted those for as long as I can remember. There are numerous reasons why, but I can stick with the biblical. There are a few passages that warn against a very public display of faith. Usually, those are self-serving and the person behind them rarely lives up to the message.

In the case of the patriotism, they almost always come from conservative end of the spectrum. Not surprisingly, that’s usually where the religious ones come from as well. In both cases, we should watch for the strings that are almost certainly attached.

It comes with an implication of what it means to be a patriotic American. Interesting enough, it is those same strings to seem to be attached to the Christian message. Agree with the message and you agree with what’s behind the message. Don’t agree with what’s behind the message and you don’t agree with the message. See what we’ve done here? It’s the infamous circular argument.

It’s the same circular argument that brought the Texas legislature and governor to oppose the teaching of the existence of racism. It’s the same one that has many questioning the validity of the election. It’s the same one that has them wanting to restrict voting access. It’s a tangled web that requires a love of country that doesn’t see faults except for the ones that aren’t there.

It is the kind of love that exists nowhere else. We don’t love our family that way. We don’t love our sports teams that way. We don’t love our spouses that way. If we are doing it right we don’t even love ourselves that way. How could we possibly love our country that way? It is a love that loves without complexity. It is a love that loves without understanding. It is a love that fails to separate those that defend its freedoms with those make the decisions surrounding it. It really isn’t love at all. Strings are always dangerous when it comes to love. Watch out for strings.