Your Military Defender Blog


May 2018
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 ORIGINALISM.  It’s interesting that the proponent of legal originalism, Supreme Court Justice Scalia, a Roman Catholic, so strongly favored “original intent.” Respectfully, his church saw the expansion of doctrine well beyond early Christianity –e.g., the Papacy, or unfolding of church doctrine on everything from celibacy to the Trinity to just war.   Given evolving church doctrine, why didn’t Justice Scalia embrace what was arguably a similar unfolding of Constitutional interpretation?

FOREIGN AID:   Many citizens believe this country overspends on foreign aid.   Surveys appear to show that many estimate the US spends upwards of 20% of the Federal budget for foreign aid.   However, if columnist Michael Gerson is the right, foreign aid – including international development and global health – represents less than 1% of the Federal budget.   He argues that such assistance has usefully combated disease and destabilization, saving more than 1 million lives, mainly young children.

IMPEACHMENT?   Author Cass Sunstine has researched the where/when of impeachment in America.  Bottom line: impeachment has been traditionally a partisan affair.  Mr. Sunstine offers various definitions and rationale for impeachment.

SURVEILLANCE: Jennifer Granick has written an interesting book about American spies.  Today, she comments, many Americans probably approve current rules and policies – “we have nothing to hide.”  However, she warns of dangers to individual rights if targeting supports the political objectives of a given administration.   The dangers of abuse are manifest, she says, since approximately one in four Americans has some form of a criminal record.   It boils down to the old question – how to balance democracy, the rule of law, and civil liberties.

FLAWED TRIALS.  The June 2017 decision of the US Supreme Court in Weaver v. Massachusetts alarms some civil libertarians.  The Court seemingly made it more difficult for defendants to gain relief from convictions after flawed trials.  To persevere, the complaining party must prove prejudice.   That can occur in two ways: [1] by showing that, absent the error, there was reasonable probability of a different outcome; or [2] demonstrating that counsel’s error rendered the trial fundamentally unfair.  Critics deplore the Weaver decision as unfairly tweaking the concept of “structural error.”   [That is an error violating Constitutional guarantees that define a fair criminal trial].  Such structural errors are so dangerous that they defy harmless error analysis and historically trigger reversal.  However, Weaver seems to require the offended party to object to that error at trial.   The Catch-22:   Prejudice stemming from this type of error is nearly impossible to prove: How can anyone show – well after the fact – that violation of a basic right affected the outcome?

HAIR SAMPLES: The NACDL CHAMPION magazine discusses the zigzag history of hair sample evidence.   For decades, FBI analysts claimed they could tell whether certain hairs came from a given person.  However, the National Academy of Science has stated that there’s no scientifically accepted formula about the frequency with which particular characteristics of hair are distributed in the population.    Between 2009 and 2013, DNA testing exonerated three men serving lengthy prison sentence whose convictions rested, at least in part, on microscopic hair analysis.

MARIN PROTOCOL:  Interestingly, few accusers seem to take a lie detector test prior to going public, accusing prominent individuals of sexual misconduct.   Of course, it’s wise to keep such results private unless and until they appear to confirm the accuser’s story.   And certainly, the reliability of polygraphs is an open question.   However, lie detector tests may gain increased dependability from something called the Marin Protocol:   If several individuals take a lie detector test and reach the same result, there’s a cumulative effect of increased reliability.

BEETHOVEN’S BIRTHDAY.    December 15 is celebrated as the birthday of Beethoven, the famous composer.  Right to life advocates claim that – had prenatal data been available centuries ago – he would have been aborted for significant birth defects.




A series of pertinent – and impertinent – comments on military matters


EQUAL JUSTICE?  Rick Jones, a public defender in the Harlem area of New York City, comments on racism in American justice.   His main points – supplemented with extensive notes:

  • 42% of all school referrals to law enforcement are for black students, as opposed to 23% white and 29% Hispanic
  • Black juveniles are more than four times as likely as white peers to be committed to detention facilities
  • Black drivers are 2 ½ times more likely to have their cars search during routine traffic stops, compared to white drivers
  • People of color represents 2/3 of the life-sentenced population
  • Despite using and selling drugs at similar rates, African-Americans and Latinos comprise 62% of those in state prisons for drug offenses

ETHICS IN BLOGGING.  The NACDL’s Champion magazine warns about ethical pitfalls for attorneys using blogging and social media.  One problem is protecting client confidentiality.  Another common issue is inadvertently establishing a client relationship online by answering specific questions in response to queries.

CHALLENGES IN FEMINISM.  Commentator Ann Bernays recalls with affection her mother in the early part of the 20th century.   She continued to use her maiden name even after she married; and she became the first married woman to obtain a passport in her own name.  She soon found it a nuisance to repeatedly explain her name to clients, social contacts, schools, banks, and doctors.

ELEVATED BLOOD PRESSURE.  Northwestern University’s alumni magazine reports that segregation impacts the blood pressure of minorities.  An assistant professor of preventive medicine, Kiari Kershaw, found that the systolic blood pressure of African-Americans dropped between one to five points when they moved to more integrated neighborhoods.

SHIPS OF THE LINE.  For those not “Navy,” the expression ships of the line seems exotic. Turns out the phrase simply refers to war vessels sufficiently large to join the “line” of fighting ships.


LOOKING FOR TERRORISTS  IN THE WRONG PLACE?  Peter Bergen, a CNN national security analyst, says that Americans are worried about the wrong terrorists.  Of the 13 perpetrators of significant lethal and jihadist terrorism attacks in the United States since 9/11, all were American citizens or legal permanent residents.   In another study of 406 cases, more than 80% of those involved in terrorism were US citizens or permanent legal residents.

SECOND AMENDMENT ARGUMENT? We haven’t heard it elsewhere, so respectfully advance this thought – the Second Amendment speaks of a “well-regulated militia.” Question: does “well-regulated” simply describe Reserve/Guard forces?  Or does it imply that the militia (those who keep arms in defense of the Nation) are subject to regulation?

COMMAND INFLUENCE.  Recently, the Navy-Marine Corps Court of Criminal Appeals set aside the conviction of a Marine SSgt.  named Chamblin.  The reason – command influence, with the service’s top general supposedly meddling in the case.

SEXUAL HARASSMENT.   Current news reports have involved powerful individuals and inappropriate sexual behavior.  We think back to the former Judge Advocate General of the Air Force, who was found to have engaged in such conduct during sanctioned office visits.  He targeted female attorneys, some of them holding high rank.  It is troubling thought that these professionals, holding doctorates in law, nonetheless felt uncomfortable refusing his unwanted advances.




PSYCHOLOGY AND TORTURE.  What is the mature balance between national security and the rights of enemy combatants? Psychologist Roy Eidelson, writing a recent Washington Post commentary, notes a recent lawsuit filed by the ACLU for three CIA detainees. Two psychologists were accused of designing and overseeing an experimental program of supposed CIA torture and abuse.  The case was settled out of court.

Often drawn by patriotism, says Eidelson, these psychologists often seek to methodically break the minds and bodies of the detainees.  He believes they have been were present at facilities across the globe including CIA so-called “black sites” in faraway places such as Afghanistan, Cuba, Poland, and Lithuania.


CHANGING  MORES.  In regard to women’s rights, Irina   Carmon notes that rape of one’s spouse was not a crime until 1979.   Furthermore, the Supreme Court failed to recognize sexual harassment as a violation of Federal law before 1986.

FEELING OLD?  Writer Amy Nicholson comments that the highest-paid actor in the world is former wrestler Dwayne “the Rock” Johnson.


A NATIVIST BACKLASH?  Washington Post critic Carlos Lozada cites a series of successful authors feeding Europe’s anti-immigrant posture. They include Michal Houellenbeq, Eric Zemmouor, and Alain Finkielkrait.  They suggest an apocalyptic future in which the world is engulfed by a relentless radical Islamic tsunami.


AMERICA AFTER TRUMP.   E. .J Dionne’s new book ONE NATION AFTER TRUMP argues that seemingly neutral facets of the American political system have conspired in recent years to produce an unhealthy result.  He sees the electoral college as an obvious example – in the past five presidential elections, the popular vote winner lost the electoral count.  Furthermore, Mr.  Dionne condemns partisan gerrymandering – Democrats   enjoyed a 50.5% majority but controlled only 46.2% of the seats in the House.  This is due, he reasons, to a highly-skewed system favoring rural and Republican areas.


Article 93, UCMJ, Cruelty

The other day, we were successful in obtaining a “not guilty” finding in the case of a Marine corporal serving at an overseas embassy.  Our client had been charged with cruelty under Article 93, UCMJ.  A quick review of Article 93 reveals a limited class to whom it applies.

Article 93 prohibits cruelty and maltreatment of those “subject to his orders.”

 The UCMJ generally requires an individual to obey lawful orders of his/her superiors.  But who is a superior?   The highest military court has selected a narrow interpretation.

 In US v. Curry, a yeoman first-class was convicted of oppressing a female petty officer — junior to him only in rank — by suggesting she should give him a body massage, Curry’s conviction was set aside – the victim was NOT subject to his orders despite the fact that he slightly outranked her.  She was under no duty to obey his orders; and he lacked authority over her and could not order her to do anything.   See US v. Curry, CMR LEXIS 1144, 882 – 0719 R N.M.C.M.R. 31 July 1991 – unpublished.

In  US v. Dickey, 20 CMR 486 (ABR 1956), the accused was commander of an army unit in Korea; he was responsible for the general supervision of certain Korean nationals,   Dickey was convicted of Article 93 cruelty for instructing subordinates to have their guard dogs attack a victim without justification.   The Army board [predecessor to the Army Court of Criminal Appeals] limited Article 93 to persons in a command capacity, prohibiting them from maltreating those under their supervision.   Dickey was not “in command” over the Korean national; ergo, this was not a crime under Article 93. 

See also the ARMY LAWYER for July 1995.  Major William T. Barro authored, SEXUAL HARASSMENT AND THE UNIFORM CODE OF MILITARY JUSTICE, A PRIMER FOR THE MILITARY JUSTICE PRACTITIONER.   He states that, based on the precedents, the rule of lenity applies.  This is a rule of statutory construction which provides that – in cases of ambiguity and where reasonable minds can differ as to the meaning — the phrase in question should be given the interpretation favoring the accused.

Addressing Article 93 directly, the author concludes:

Application of the rule to this case would seem to limit the meaning of “subject to his orders” as contained in Article 93, UC MJ, to those individuals supervised in some direct way by the accused [emphasis added]..


A Washington Post book review summarizes the forgotten frontlines of World War II in Russia.  After Hitler’s 1941 invasion of the Soviet Union, millions of Russian soldiers were captured.  Young women filled the ranks – and even flew fighter aircraft.

                                             *  *  *


Writer Suzy Hansen invites citizens to see America as the rest of the world does.  She criticizes the current President for physically pushing his way past the Prime Minister of Montenegro for a group photo of NATO leaders.  She suggests “two Americas.”    First, the America of work-in-progress, democracy civil rights, and Ellis Island.   Second, the America of military force, CIA plots, economic meddling, and contempt for foreign cultures.

She argues that Americans see themselves as a people with uniquely good intentions who want foreigners to attain a better, freer life.  This view of American superiority and goodness may not be warranted, she cautions.

Instead, she suggests that American Cold War historians deliberately constructed a world view in which “Westernization” was the politically correct pretext for US economic or political interventions abroad.


*  *  *

Writer Franklin Foer prophesies a grim future run by technological monopolies, radically molding humanity and redirecting human evolution.  He urges a pause to consider the consequences of these technological empires.  He wants humans – not Internet giants– to determine the future of mankind.   He also cautions against social media trashing of our privacy.

Perhaps this is easier said than done. He relates that, on average, Facebook users spend 1/16 of their day on this site!


*  *  *


The Southern Poverty Law Center reports troubling events in the first 34 days after the election of President Trump.    The group counted 1,094 incidents of bias in the United States; and it calculated that 37% of them referenced to the President-elect, his campaign slogans, or his percussive remarks about sexual assault.

*  *  *

An Internet friend sends the following amusing signs —

Oregon electric company:  We urge you to send in your payment on time;  if you don’t, you will be de-lighted

Indiana restaurant window:  Don’t just stand there and be hungry; come in and get fed up

Radiator shop in Chicago: Best place in town to take a leak!

Washington DC funeral home:  Drive carefully; we’ll wait….

San Antonio septic tank truck:   This truck is full of political promises


As the New Yorker magazine comments, Pres. Trump is the only modern President to be the subject of sustained public discussion about his mental competence and fitness for office.

Increasingly, those on the liberal end of the spectrum are offering long-distance psychiatric evaluations on him.

Some examples:

  • James Clapper, the former director of National Intelligence, said on CNN, “I really question his…fitness to be in this office,” describing a Trump address as “scary and disturbing” and characterizing him as a “complete intellectual, moral, and ethical void.”


  • Following Pres. Trump’s blaming “many sides” for white supremacist violence in Charlottesville, Tennessee Senator Bob Corker, a Republican, said that the President “has not yet been able to demonstrate the stability, nor some of the competence, that he needs” to lead the country


  • Representative Zoe Lofgren, a California Democrat, introduced a House resolution urging a medical/psychiatric evaluation of the President, pointing to an “alarming pattern of behavior and speech causing concern that a mental disorder may have rendered him unfit and unable to fulfill his Constitutional duties.”  Lofgren asked, in a press release, “Does the President suffer from early stage dementia?  Is the President mentally and emotionally stable?”


  • After Pres. Trump’s “fire and fury” remarks about North Korea, Dr. Bandy Lee, a professor of psychiatry at Yale Medical School, sent her second letter about Trump to all members of Congress, warning that his “severe emotional impediments” pose “a grave threat to international security.” Her book, “The Dangerous Case of Donald Trump,” forthcoming in October, collects essays by more than a dozen mental health experts and contends that the Trump Presidency is an emergency that not only allows – but perhaps even requires – psychiatrists to speak out..


However tempting such long-distance evaluation for progressives, it seems to violate guidelines of both the American Psychiatric Association [APA] and American Psychological Association.

The APA follows a principle often called the Goldwater Rule.   An Association 2017 press release quotes the APA president cautioning that it is “unethical and irresponsible” for psychiatrists to offer a professional opinion upon “someone they have not thoroughly examined [since it] compromises the integrity of the doctor and the profession” and “violates the principle that a psychiatric evaluation must occur with consent or authorization” of the individual.

Historically, the Goldwater Rule surfaced after the 1964 presidential election defeat of Senator Barry Goldwater.  He successfully sued Fact magazine for defamation after it published a special issue in which psychiatrists declared him “severely paranoid” and “unfit” for the Presidency.  [For a public figure to prevail in a defamation suit, he/she must demonstrate that the defendant acted with “actual malice.”   A crucial bit of evidence in the Goldwater case was Fact’s disregard of a letter from the American Psychiatric Association warning that any survey of psychiatrists who hadn’t clinically examined Goldwater was invalid].

A recent article in the New Yorker magazine reports that psychoanalyst Justin Frank, a clinical professor at George Washington University, resigned from the APA  in 2003 before publishing his book “Bush on the Couch.” He went on to write “Obama on the Couch,” and is now working on “Trump on the Couch.”

Within professional mental health association circles:

  • The APA reaffirmed and arguably expanded the Goldwater rule in March 2017, stating that it applies not only to a “diagnosis” but also to “an opinion about the affect, behavior, speech, or other presentation of an individual that draws on the skills, training, expertise, and/or knowledge inherent in the practice of psychiatry.”


  • The American Psychological Association, with double APA’s membership, also reconfirmed its support for the Goldwater rule.


  • According to the New Yorker magazine, the much smaller American Psychoanalytic Association told its 3,000-plus members they were free to comment about political figures—a reprieve more symbolic than practical, since many members concurrently belong to the APA.

Some on the left argue that the Goldwater Rule unfairly muzzles First Amendment free speech, gagging 37,000 APA members from contributing to a useful, healthy public conversation.

The New Yorker article speculates that many US presidents may have served despite various forms of mental illness – depression, anxiety, social phobia, or bipolar disorder.  President Ronald Reagan’s staff, for example, worried about signs of dementia.  And concerned about Richard Nixon’s paranoia and heavy drinking in his last days in office, his Defense Secretary supposedly told the Joint Chiefs to disregard any White House military orders.



Interesting note from a theater program: Why do ships and aircraft use MAYDAY as a call for help?

Answer: It comes from the French word M‘AIDEZ – meaning “help me.”


  • Useful FBI acronym: a fictitious name/memory device to measure individuals
    seeking positions of public trust. The name is CARLA F. BAD. It stands for –
                                                                          # # #
    Writing in the Washington Post, retired Col. Sheri Swokowski reveals a
    transgender officer. The colonel “had to suppress my authentic self” while serving
    in the Army, including the Infantry for almost 35 years. Swokowski deployed
    twice to the war zone and retired to an important manpower/personnel division in
    the Wisconsin Guard. The colonel speaks of other transgenders who serve the
    country, get the job done, and hopefully are judged “based on a person’s character
    and ability.”
                                                                          # # #
    Does being rich damage the soul? A professor and PhD candidate in religious
    studies at the University of Virginia think so. They report that formerly, having vast
    sums of money supposedly harmed one’s character, warped behavior, and
    corrupted the soul. From the Reformation until the 1970s, the extremely rich
    remained morally suspect. Then, executive salaries skyrocketed wildly– without
    much questioning of character.
    Behavioral studies supposedly reveal that the rich are “morally malformed,” –
    more likely to be shoplifters or sex offenders. They proportionally give less to
    charity and are more likely to experiment with adultery.
                                                                          # # #
    Professor of medicine Elaine Schatner salutes Sen. John McCain. However, she
    cautions that applying battle language to the experience of having cancer is
    erroneous. There is no empirical proof that cancer can be “beaten” by a strong
    will, she maintains.
                                                                          # # #
    Paul Butler is the author of CHOKEHOLD, an intriguing book voicing the fears of
    black man in America today. His title attempts to capture racial oppression, Jim
    Crow, and racial profiling. Mr. Butler suggests what to do if caught “driving while
    black.” Do not wear clothes that stand out, “let the cops win,” show deference, and
    never, never raise your voice…
                                                                          # # #
    A Washington Post thought piece analyzes the prudent litigation strategy of the gay
    > Carefully identify “friendly” states where litigation might stand a solid
    > Bring lawsuits under the state constitution, never directly challenging the
    Federal government
    > Persuade individual “rogue plaintiffs” to avoid suing in states where they
    would almost surely lose
    Another review – focusing on the battle for gay marriage equality – cites other
    effective strategies:
    > Assess whether a given judge is “persuadable”
    > Build familiarity with the non-gay mainstream
    > Work out strategy and tactics via moot court testing
    > Choose the “right words” – marriage equality, not gay marriage