August 26th, 2009 by Brian F. George
The California State Senate passed a resolution yesterday calling for an end to “don’t ask, don’t tell”, the colloquial name for the federal law which bans openly gay men and women from service in the military. The Palm Springs Desert Sun is reporting that the resolution passed 23-16.
The ban, signed into law in 1993, has been controversial since day one. It prohibits military members from engaging in homosexual acts, marrying or attempting to marry, or making statements about their homosexuality – essentially anything that would make known their sexual orientation. In the event a member is found to have violated the policy, the result, absent any accompanying criminal allegations, is typically discharge with an honorable characterization of service.
Opponents claim the law is unlawfully discriminatory and argue that men and women should be able to serve their country without regard to sexual orientation. They also point to the costs, in time, money and experience, of discharging trained military members in the midst of two wars.
Supporters argue that allowing openly gay service members would be detrimental to unit cohesion and is an attempt at social engineering in the military.
As a practical matter, when I was a JAG advising commanders on what to do in these cases under the law, I found the administrative guidance implementing “don’t ask, don’t tell” to be quite cumbersome. The regulations almost seemed to have an implicit bias against further inquiry, or at least in favor of carefully controlling the inquiry. In most cases, there was much “adult” supervision and approval required before any further investigative steps could be taken on an allegation (”Adult” in this context being defined as someone with three or four stars on his or her shoulders). So, despite being (usually) administrative in nature, there was more supervision involved in these cases than, by contrast, in a routine criminal investigation.
While President Obama campaigned on repealing the law, he has not yet taken affirmative steps to do so since taking office.
As California goes…? We shall see.
August 20th, 2009 by Brian F. George
A Special Forces soldier who was found guilty at court-martial of kidnapping, forcible sodomy and aggravated assault went missing this morning in Vilseck, Germany, according to Stars and Stripes. Sgt 1st Class Kelly A. Stewart, an Iraq war veteran, was last seen by his escort at an on-base hotel. Despite his absence, he was sentenced this morning to 8 years in confinement, reduction to E-1, total forfeitures and a dishonorable discharge. Authorities are searching for Stewart. The full story is here.
UPDATE: August 24, 2009. It appears SFC Stewart surrendered at Patch Barracks, Stuttgart Germany, on Friday at 10 p.m. The story is here.
August 19th, 2009 by Brian F. George
UPI is reporting that a Marine captain is scheduled to be arraigned today at Camp Pendleton on a charge of rape. He apparently completed his studies at University of San Diego Law School, but the law school is withholding his degree pending court-martial. His attorney maintains he had consensual sex with other University of San Diego law students, and the University cleared him of misconduct. The story is here.
August 19th, 2009 by Brian F. George
The US Court of Appeals for the Armed Forces (CAAF) has granted a petition for review in U.S. v. Hayes, set aside the decision of the Navy-Marine Corps Court, and remanded the case for a further factual inquiry (through affidavits or a Dubay hearing) regarding the following issue:
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND THAT APPELLANT WAS NOT DENIED HIS RIGHT TO A FAIR TRIAL DESPITE THE MILITARY JUDGE’S (1)EXHIBITION OF BIAS, AFTER TRIAL, IN ANNOUNCING HIS PERSONAL DISTASTE FOR BOTH HOMOSEXUALITY AND APPELLANT; AND (2) HIS EXHIBITION OF PARTIALITY, DURING TRIAL, BY ADVISING THE GOVERNMENT ON TRIAL TACTICS.
The comments at issue appear to have been made in a “bridging the gap” session with counsel after trial.
August 18th, 2009 by Brian F. George
Welcome to our blog. We are former JAGs and military defense lawyers, now in private practice and representing miliary members facing all manner of disciplinary and administrative proceedings. Here, we intend to follow recent developments in military law, policy and related areas, and hope our postings will be of interest to military law practitioners, military members and interested members of the public.
The views expressed on this blog are those of the contributors alone, and do not necessarily reflect the views of Britt, Hankins & Moughan, or its attorneys.
