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July 18, 2008


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John C

Not to make a cheap point here, but having a publicly racist soldier is less burdensome on unit cohesion (in an integrated military) than having a homosexual soldier (in an environment where sexual behavior amongst soldiers of any orientation is banned)? Ridiculous.


Not a cheap point at all. A very good point, Id say.


The distinction is between speech which might simply violate DoD policy and speech which arises to the level of a crime. In this case, the prosecution failed to prove to the Court's satisfaction an essential element of the offense: that the speech was "prejudicial to good order and discipline" or "service discrediting", each a legal term of art with its own fairly precise definition. The Court of Appeals for the Armed Forces would no more defer to the command's judgment of whether the accused was guilty than its civilian counterparts would defer to the judgment of the friends and neighbors of an accused being prosecuted by civilians.

The Court's opinion can be found at its website:

Kathleen Bergin

I invited my friend and colleague Professor Rob Holland to join the discussion on Wilcox. Rob is a former military judge and expert so far as I'm concerned on all things military. Pasted below with permission are his comments and clarifications:

A few quick points about the Wilcox opinion from the Court of Appeals for the Armed Forces (CAAF) and Prof. Bergin’s post:

1. One need not wait for Westlaw or Lexis to see the text of the opinion. Like most appellate courts, CAAF posts its opinions on its public website almost immediately upon release of the decision to the parties. You can download the opinion from CAAF’s website ( ), and I’ve attached a pdf copy here.

2. Apparently referring to the CAAF , Prof. Bergin comments that it is “surprising that a military court drawn from military officers wouldn't give more deference on that point [i.e., the degree of actual or potential disruption to military operations or discipline] to the judgment of commanders on the ground.” Two comments:

a. CAAF is not a military court drawn from military officers, but rather is an independent Article I appellate court created by Congress (see 10 U.S.C. § 941 et seq.), whose five judges are appointed by the President but must be confirmed by the Senate, and who serve fifteen year terms. By law, those judges must come from civilian life (career military officers are expressly ineligible for appointment as CAAF judges).

b. The mere allegation by the commanders who filed the charge and the general officer who referred the case to trial by court-martial is no more a legal determination or “finding” deserving of deference than an accusation of criminal misconduct in any other state or federal judicial system would be. The entire premise of the Uniform Code of Military Justice (UCMJ) is that commanders at various levels have the responsibility to initiate criminal proceedings by making an accusation of criminal conduct against a defendant-soldier, but that soldier is presumed innocent, and the court-martial itself (here, a military trial judge, a senior Army lawyer appointed to that full-time judicial position and serving independent of the command structure) and, later, the appellate courts at each level, have the responsibility to decide if the allegations are supported by the evidence. Congress, in other words, did not intend that the military legal system of trial and appellate courts “defer” to the beliefs of commanders, whether captains or generals, about the culpability of soldiers, any more than a civilian trial judge or jury defers to the district attorney as to culpability or sentence.

3. The Wilcox decision dealt only with a single criminal count or allegation, the only one of those for which the soldier was previously found guilty at trial and which was upheld by previous appellate review. This count was NOT the crime of disobedience of the Army regulation that Prof. Bergin quotes in her post. CAAF did not question or rule against the constitutionality of that Army regulation. Actually, CAAF only reviewed whether Wilcox was properly convicted of violating Article 134 of the UCMJ (10 U.S.C. § 934) which prohibits, inter alia, misconduct (not otherwise enumerated in the UCMJ) which is “to the prejudice of good order and discipline in the armed forces [OR] conduct of a nature to bring discredit upon the armed forces.” Well-settled military legal precedent holds that for an Article 134 conviction, the first element is whether the soldier actually committed the alleged conduct, and the second element is the nature of the conduct (that is, the particular circumstances of the case must show that one or both of those statutory prongs, palpable harm to the internal cohesion & discipline of the unit or the discrediting of the Army as an institution in the public’s eyes, must be proven by evidence; neither is presumed just because it seems contrary to Army policy).

a. The CAAF majority and dissenting opinions both concluded, correctly in my estimation, that the soldier’s private e-mail messages to an undercover CID agent posing as a civilian woman could not meet either prong (couldn’t harm military discipline and couldn’t discredit the Army in the eyes of the general public).

b. The CAAF majority concludes that there was insufficient evidence that the soldier’s self-description of himself in his two AOL profiles (accessible to other AOL members) as an “Army paratrooper at Fort Bragg who was a white supremacist” posed any palpable danger to military cohesion or discipline, or was likely to reflect badly on the Army in the general public’s eyes, because it was so clearly just the ravings of one rogue soldier. The CAAF holding, essentially, was that the neither prong of the crucial second element of this crime was proven.

c. Both opinions explain the modern history of the freedom of speech principles afforded soldiers on active duty since Parker v. Levy. In this respect, my own view is that Judge Baker’s dissent, which would uphold the conviction but only on the service discrediting prong of Article 134, is much more logical and convincing in how it synthesizes and applies what might be called the “First Amendment in the military” precedents to the Wilcox situation.

Rob Holland

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