Latest filings in the U.S. district court challenge to the Marine Corps’ attempt to separate Sgt Gary Stein with an OTH
Here’s a link to the motion for preliminary injunction filed on behalf of USMC Sgt Gary Stein today. Sgt Stein is pursuing relief in the United States District Court for the Southern District of California to stop the Marine Corps from separating him with an OTH as a result of certain social media posts he made. The motion for preliminary injunction includes statements by Brigadier General David M. Brahams, USMC (Ret.), the former SJA to the Commandant of the Marine Corps, and Professor Jeffrey F. Addicott of St. Mary’s University School of Law, a retired Army judge advocate.
Here’s a link to DOJ’s opposition. The exhibits filed by DOJ are voluminous and I don’t have time to upload them all. Here’s a link to the admin discharge board transcript, which is probably the most interesting exhibit. Here’s a link to the first batch of exhibits. And here’s a link to the second batch. I’m not sure if I’ll have time to post any of the additional exhibits tonight.
I now must assume that the Military does not have 1st Amendment rights!
(SgtMaj Brookman): The way we counsel our Marines as
enlisted, we follow the orders. If the commander –
depending on what we’re doing, mission, noncombat or
combat, you know, we have a set of orders to follow.
Where it comes to disparaging remarks to a commissioned
officer or a political affiliate, we just don’t — we
don’t do it. That is un-Marine like. You know, what we
teach the Marines about the UCMJ is that is our
guideline to follow. If an officer gives me an order,
that’s a lawful order I must follow unless it’s going to
cause myself undue harm or harm to others. That’s the
only time we question orders. So how I expect my
Marines to react is in a professional means.
Francis, military members have 1st Amendment rights, just less of them. The Supreme Court held in Parker v. Levy “While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it.”[ 417 US 733, 758 (1974) These diminished constitutional protections for military members are not particularly controverisal. All of us in the military can be prosecuted for bad mouthing our bosses, disobeying orders, not coming to work, not cutting our hair and any number of other activities that might get you fired in the civilian world, but wouldn’t get you a criminal conviction.
Is that really Gary Kreep serving as one of the civilian counsel?
Why am I not surprised that one of the leading lights of the birther movement is involved?
Yes, that is the same Gary Kreep. I commented about his radio interview on the hearing on the other Stein article.
The substantive merits aside, this is an excellent example of the broken admin sep process. The thought that these proceedings are ever fair and impartial is just ludicrous. It would be more honest just to substitute the entire seps manual with “The government can do whatever it wants, and the respondent shall have no redress.”
Why isn’t it fair? Neither side has to worry about the rules of evidence, so the defense has as much leeway as possible to introduce mitigation et al, the accused can testify without being cross examined, and the board’s decisions can’t be made worse. And of course, you get full attorney representation for what is effectively a firing decision.
Now, I’m sure there are individual boards that have been unfair, but that’s an indictment of those individuals (and possibly the attorney(s) involved depending on the situation), not the process itself.
What would you substitute/add as a process? Again, we aren’t talking about a criminal trial but an administrative board.
Please don’t forget that the service people cannot be service people unless they give their permission to be governed by the various regs and the UCMJ. That is taken care of at enlistment time. Don’t you read contracts before signing them?
I don’t think I’ve ever seen an attorney who was, by his own admission, not detailed to a case make objections during voir dire.
@Christopher Mathews–If I read that correctly, that officer was the supervisor of the detailed counsel. Why was he there, even? I don’t know anything about how military legal units work except the blindingly obvious, but I thought that was weird.
@ sg – I read it the same way. I’ve seen supervising attorneys visit the courtroom on occasionto observe the performance of their subordinates, so his presence didn’t strike me as all that odd. Making objections from the spectators’ seats, on the other hand …
Of course, this wasn’t a courtroom. In the USMC at least, admin discharge boards are often far less formal than courts-martial.
I yield on the questions of USMC custom to the members of the Corps. So … *is* it common for attorneys not detailed as counsel to attend Marine adsep proceedings and to make objections from the spectators’ gallery?
JMTGst, while the answer to the question you pose is no, (a) it is common for things to happen in an admin discharge board that wouldn’t happen in a court-martial; and (b) as respondent’s counsel noted, “it’s very uncommon for the legal adviser to interrupt the counsel’s voir dire.” R. at 26. When the legal advisor responds, as he did, “It may be uncommon, but it’s going to happen,” id., it shouldn’t be too surprising when something else uncommon occurs, in this case, the regional defense counsel calling him out for exceeding his authority. See R. at 35-36.
I read the transcript and it appeared to me that Gary Kreep took no part at all in the oral argument and questioning. He may have help with the written exhibits. I suspect Kreep’s primary interest is to make sure the United States Justice Foundation got their money’s worth out of Stein and to generate some good anti-Obama propaganda.