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Mon Feb 7, 2022, 09:35 AM

I fail to understand why General Michael Thomas Flynn has not been recalled to active duty and

court martialed for treason!!!!!!!!!!!!!!!!!!!!
Does anyone have an answer or suggestion as to why not?

48 replies, 1990 views

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Reply I fail to understand why General Michael Thomas Flynn has not been recalled to active duty and (Original post)
40RatRod Feb 2022 OP
FreepFryer Feb 2022 #1
Walleye Feb 2022 #2
Alexander Of Assyria Feb 2022 #16
Walleye Feb 2022 #23
CanonRay Feb 2022 #27
sarisataka Feb 2022 #19
Srkdqltr Feb 2022 #3
bearsfootball516 Feb 2022 #5
Srkdqltr Feb 2022 #13
haele Feb 2022 #4
Scrivener7 Feb 2022 #8
haele Feb 2022 #12
sarisataka Feb 2022 #14
Scrivener7 Feb 2022 #17
sarisataka Feb 2022 #18
Scrivener7 Feb 2022 #20
sarisataka Feb 2022 #24
Scrivener7 Feb 2022 #29
sarisataka Feb 2022 #31
Autumn Feb 2022 #10
The Magistrate Feb 2022 #6
Bluethroughu Feb 2022 #11
sir pball Feb 2022 #28
Effete Snob Feb 2022 #32
madville Feb 2022 #45
msfiddlestix Feb 2022 #7
Effete Snob Feb 2022 #33
msfiddlestix Feb 2022 #35
Effete Snob Feb 2022 #36
msfiddlestix Feb 2022 #37
Effete Snob Feb 2022 #38
msfiddlestix Feb 2022 #39
Effete Snob Feb 2022 #40
msfiddlestix Feb 2022 #43
BlackSkimmer Feb 2022 #42
madville Feb 2022 #47
brooklynite Feb 2022 #9
AZSkiffyGeek Feb 2022 #25
brooklynite Feb 2022 #26
Effete Snob Feb 2022 #34
nitpicker Feb 2022 #41
madville Feb 2022 #48
sarisataka Feb 2022 #15
ampm Feb 2022 #21
Effete Snob Feb 2022 #22
doc03 Feb 2022 #30
traitorsgalore Feb 2022 #44
Angleae Feb 2022 #46

Response to 40RatRod (Original post)

Mon Feb 7, 2022, 09:35 AM

1. You had better let someone know! Maybe no one thought of it. (Nt)

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Response to 40RatRod (Original post)

Mon Feb 7, 2022, 09:35 AM

2. I'm with you. If this isn't treason, what is?Now they are even siding with the Russians

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Response to Walleye (Reply #2)

Mon Feb 7, 2022, 10:10 AM

16. Hate speech is legal in America, so hasn't committed any crime at all.

That needs to change…just meet overwhelming hate speech with more free speech, no need for slippery slope hate speech laws in America…how that working out?

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Response to Alexander Of Assyria (Reply #16)

Mon Feb 7, 2022, 10:27 AM

23. Being an unregistered foreign agent is a crime

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Response to Alexander Of Assyria (Reply #16)

Mon Feb 7, 2022, 10:38 AM

27. Actually, he pled guilty to a felony

which is enough right there. I believe he could still be court martialed for that, even though pardoned. If nothing else, call him back to active duty, send him to Timbuktu and order him to keep his mouth shut about politics.

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Response to Walleye (Reply #2)

Mon Feb 7, 2022, 10:16 AM

19. Article III,

Section 3, Clause 1

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Response to 40RatRod (Original post)

Mon Feb 7, 2022, 09:42 AM

3. Do it.

Who is in charge of recalling him? Get him on the phone and tell him to recall Flynn. It can't be that hard. Many on DU have said the same thing. All you posters... get on it. Make it happen.

Sorry couldn't find the sarcasm thingy.

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Response to Srkdqltr (Reply #3)

Mon Feb 7, 2022, 09:47 AM

5. Here you go

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Response to bearsfootball516 (Reply #5)

Mon Feb 7, 2022, 10:05 AM

13. Thanks

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Response to 40RatRod (Original post)

Mon Feb 7, 2022, 09:46 AM

4. Maybe because they have dozens of "General Flynns" they're dealing with internally...

And the Pentagon is slowly attempting to right itself and get those birds and stars to leave without airing too much dirty laundry.
Flag officers tend to live in ratified political air, and too many forget they're public servants doing a job.
The only saving grace is that not many can get entrenched, there's always a new billet they have to find within four to six years.

Haele

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Response to haele (Reply #4)

Mon Feb 7, 2022, 09:57 AM

8. How do we know they are trying to get rid of them? How do we know

they aren't promoting them?

Flynns brother is pretty high up and no one is touching him.

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Response to Scrivener7 (Reply #8)

Mon Feb 7, 2022, 10:04 AM

12. We don't know, because military justice isn't transparent.

But I have seen more than a few upper level officers "encouraged" to leave early on the conditions they won't get punished for their incompetence or arrogant flouting of the UCMJ over the years.
Most have become "expert" commenters at right wing organizations afterwards because they're already consumed by their egos.

Haele

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Response to Scrivener7 (Reply #8)

Mon Feb 7, 2022, 10:07 AM

14. Do you believe

Biden would be approving their recommendations for promotion?

At flag ranks, the path for promotion goes through the President.

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Response to sarisataka (Reply #14)

Mon Feb 7, 2022, 10:15 AM

17. Do you believe tfg didnt?

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Response to Scrivener7 (Reply #17)

Mon Feb 7, 2022, 10:16 AM

18. He's not President now. Nt

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Response to sarisataka (Reply #18)

Mon Feb 7, 2022, 10:16 AM

20. He was for 4 years.

Can we stop with the Captain Obvious now, though?

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Response to Scrivener7 (Reply #20)

Mon Feb 7, 2022, 10:30 AM

24. The OP is discussing the present,

Not the past. Also your reply "How do we know they aren't promoting them?" was in response to current activities of the Pentagon.

Since both points are referring to today not some day in a past four year range, I ask- Do you believe Biden would be approving their recommendations for promotion?

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Response to sarisataka (Reply #24)

Mon Feb 7, 2022, 10:58 AM

29. No, seriously. You're a military guy. Are you doing satire? Do you really not see the

dopiness of that argument?

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Response to Scrivener7 (Reply #29)

Mon Feb 7, 2022, 11:11 AM

31. I see the dopiness

Of the whole premise of recalling him.

The same questions are asked over and over. They are answered by people who will explain why x hasn't or won't happen. Because the answer isn't popular (though it is accurate) the questions keep getting asked like reality has changed since yesterday.

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Response to haele (Reply #4)

Mon Feb 7, 2022, 10:00 AM

10. Is the Pentagon short staffed? Maybe we need to increase their budget.

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Response to 40RatRod (Original post)

Mon Feb 7, 2022, 09:55 AM

6. It Is Not A Settled Legal Question, Sir

It is unclear whether a person recalled to active duty can be prosecuted under military law for actions while separated from the service.

He could be recalled, stripped of rank, and assigned duty at some Aleutian weather station without access to any communications in advance of a single land-line telephone, though....

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Response to The Magistrate (Reply #6)

Mon Feb 7, 2022, 10:03 AM

11. That sounds like a great idea, and he'll be able to see Russia from his desk.

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Response to The Magistrate (Reply #6)

Mon Feb 7, 2022, 10:42 AM

28. That's fine by me, "buck Private Flynn" has a lovely ring to it nt

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Response to The Magistrate (Reply #6)

Mon Feb 7, 2022, 11:35 AM

32. Tony Curtis was great in that film


It was Labrador, for an arctic survival course.

https://en.wikipedia.org/wiki/Not_with_My_Wife,_You_Don%27t!


The case you are seeking is Larrabee v. Braithwaite, 502 F. Supp. 3d 322 (D.D.C. 2020).

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Response to The Magistrate (Reply #6)

Mon Feb 7, 2022, 10:08 PM

45. Correct, it's not as simple as people make it sound

It's never really been tested, there are oddball prosecution cases where someone was retired but with less than 30 years of service which still made them a member of a specific reserve component for example. That kind of stuff wouldn't apply to Flynn.

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Response to 40RatRod (Original post)

Mon Feb 7, 2022, 09:57 AM

7. Right? I want to know why as well.

we know he can be recalled to active service and then then tried in Military Tribunal.

Unless, his status changed this past year and not reported out?

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Response to msfiddlestix (Reply #7)

Mon Feb 7, 2022, 11:37 AM

33. How do "we know" this?


The usual way "we know" legal things is by reference to relevant court decisions applying the law. The one court to consider this recently said it is bullshit. So, who is "we" and how do "we know" this?

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Response to Effete Snob (Reply #33)

Mon Feb 7, 2022, 12:57 PM

35. I think you mistakenly responded to my post. n/t

Not sure who you intended to address...

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Response to msfiddlestix (Reply #35)

Mon Feb 7, 2022, 01:01 PM

36. I intended to address...


...the person who said:

"we know he can be recalled to active service and then then tried in Military Tribunal"

I'd like to know how "we know" this.

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Response to Effete Snob (Reply #36)

Mon Feb 7, 2022, 01:20 PM

37. hmm.



on another subject... you addy is a curious choice.

care to enlighten?




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Response to msfiddlestix (Reply #37)

Mon Feb 7, 2022, 01:25 PM

38. Google is your friend


First result:

https://politicaldictionary.com/words/effete-snobs/

"Agnew’s “effete snobs” speech, though, quickly became notorious and was co-opted by the left for their own purposes. Political buttons soon appeared, reading, for example, “snob for peace” or “I’m an effete snob for peace.”"

Pretty much anyone who has been anti-war, along with the judicial trappings of war, for a significant time recognizes it right away.



Fans of the Nixon administration have a hard time with the name, I guess.

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Response to Effete Snob (Reply #38)

Mon Feb 7, 2022, 01:35 PM

39. well, i did google before I asked the question...

but it wasn't very flattering. so I figured there must have been a different reference..

who would purposely identify as an ineffective, weakened snob?

this came at the top of my google search:

Latin:

adjective
adjective: effete
(of a person) affected, overrefined, and ineffectual.
"effete trendies from art college"


this is the French definition
weak, ineffectual, or decadent as a result of overrefinement. an effete academic. 2. exhausted of vitality or strength; worn out; spent.



https://www.google.com/search?q=what+does+%22effete%22+mean%3F&rlz=1CATQED_enUS945US945&oq=what+does+%22effete%22+mean%3F&aqs=chrome..69i57j0i22i30l9.13516j1j7&sourceid=chrome&ie=UTF-8





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Response to msfiddlestix (Reply #39)

Mon Feb 7, 2022, 01:42 PM

40. I guess the Spiro Agnew reference flew right past you

As to "who would identify" as one - pretty much the entire anti-war movement after Agnew made the speech.

Google the phrase "effete snob". Sometimes a phrase means more than its component words.



But, yeah, Republicans didn't understand why people adopted the label either. Some things don't change. People have a problem with opposition to war and its trappings. That's pretty much a constant in US politics.

Pretty rare to find a Spiro Agnew fan these days, but here we are I guess.

Good luck court-martialing (Col.) Ted Lieu and other Democratic veterans if the GOP gains power again.

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Response to Effete Snob (Reply #40)

Mon Feb 7, 2022, 05:09 PM

43. I'm old enough to remember, and I was and still am anti-war activist

But thanks for the clarification.

have a really nice day.

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Response to msfiddlestix (Reply #39)

Mon Feb 7, 2022, 03:58 PM

42. You obviously not seen some of the odd names here over time lol.

I get the Agnew reference so I understand that name.

But we have had a “snotsicles” and I think we even had a “snot” at one time. We have someone named after a rightwinger’s liver, and over the years I’ve seen many, many that made me giggle and wonder.

I can’t even remember some of the craziest names, but I remember we had them!

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Response to msfiddlestix (Reply #7)

Mon Feb 7, 2022, 10:10 PM

47. Why would he be recalled for crimes committed as a civilian?

That's what the civilian justice system is for, it basically shouldn't fall on the military justice system if he's not "on duty" at the time of the crime.

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Response to 40RatRod (Original post)

Mon Feb 7, 2022, 09:58 AM

9. Yes. He hasn't been recalled because its a stupid idea.

This has been popping up for months now, and its just as silly as it was when first suggested. The purpose of holding military retirees in reserve is to draw on their skill when needed. NOT to find a "miracle cure" way of prosecuting them.

If Flynn has committed a crime as a civilian, he can be prosecuted as a civilian.

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Response to brooklynite (Reply #9)

Mon Feb 7, 2022, 10:32 AM

25. There's all sorts of stupid ideas floating around here

People want justice and can't accept what is and isn't in the Constitution, so they come up with hare-brained ideas (just like TFG did) to justify end-runs around the legal system.

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Response to AZSkiffyGeek (Reply #25)

Mon Feb 7, 2022, 10:36 AM

26. They also don't think through the implications.

If this is new standard, what's to stop the next Republican President from reactivating and "sending to Alaska" Democratic veterans in Congress that he/she doesn't like?

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Response to brooklynite (Reply #26)

Mon Feb 7, 2022, 12:49 PM

34. (Col.) Ted Lieu would be first on the list

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Response to brooklynite (Reply #9)

Mon Feb 7, 2022, 03:50 PM

41. +1

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Response to brooklynite (Reply #9)

Mon Feb 7, 2022, 10:16 PM

48. And people don't realize how convoluted the military retiree/reserve system is

There are many different "statuses" one can be in after being on active duty. It also depends if one retired with 20 years of service or is past 30, there can be a window from 20-30 years as a retiree where one is still at a higher level of reserve status. I think there has been like one case of a retiree being recalled to be tried under the military justice system for a crime post-retirement because they were still technically in the reserves because they hadn't hit 30 years total time in service yet.

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Response to 40RatRod (Original post)

Mon Feb 7, 2022, 10:09 AM

15. Asked and answered

Many times.

Move on.

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Response to 40RatRod (Original post)

Mon Feb 7, 2022, 10:20 AM

21. Depend what branch of service

Maybe his brother might have a say and is defending him

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Response to 40RatRod (Original post)

Mon Feb 7, 2022, 10:24 AM

22. Because it is a goofy scenario

Try reading Larrabee v. Braithwaite, 502 F. Supp. 3d 322 (D.D.C. 2020)

https://storage.courtlistener.com/recap/gov.uscourts.dcd.204940/gov.uscourts.dcd.204940.28.0.pdf

Experience has clearly demonstrated the baseline proposition that court-martial jurisdiction must be narrowly limited. The Supreme Court itself has instructed time and time again that "the scope of the constitutional power of Congress to authorize trial by court-martial" must be "limit[ed] to ‘the least possible power adequate to the end proposed.’ " Toth , 350 U.S. at 23, 76 S.Ct. 1 (quoting Anderson v. Dunn , 19 U.S. (6 Wheat.) 204, 230–31, 5 L.Ed. 242 (1821) ). Indeed, trial by court-martial "was intended to be only a narrow exception to the normal and preferred method of trial in courts of law." Reid v. Covert , 354 U.S. 1, 21, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957). In the final analysis, "[e]very extension" of court-martial jurisdiction "is an encroachment on the jurisdiction of the civil courts" and "acts as a deprivation of the right to jury trial and of other treasured constitutional protections." Id. ; accord Toth , 350 U.S. at 15, 76 S.Ct. 1 ("any expansion of court-martial jurisdiction ... necessarily encroaches on the jurisdiction of federal courts set up under Article III of the Constitution where persons on trial are surrounded with more constitutional safeguards than in military tribunals" ) .

The Constitution created a delicate balance between the military's need to preserve good order and discipline, on the one hand, and an individual's right to due process when accused of crimes, on the other.

...

In evaluating the proper scope of court-martial jurisdiction, the Supreme Court has instructed that the relevant test is "one of status, namely, whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term ‘land and naval Forces.’ " Kinsella v. United States ex rel. Singleton , 361 U.S. 234, 240–41, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960). To answer this question, the Supreme Court has looked to whether "certain overriding demands of discipline" necessitate court-martial jurisdiction over a certain class of individuals. Solorio v. United States , 483 U.S. 435, 440, 107 S.Ct. 2924, 97 L.Ed.2d 364 (1987) (quoting Burns v. Wilson , 346 U.S. 137, 140, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953) (plurality opinion)). Obviously, the parties here agree that Congress provided court-martial jurisdiction in the UCMJ over members of the Fleet Marine Corps Reserve and other military retirees. See 10 U.S.C. § 802(a)(4), (6) ; see also Pl.’s Mot. at 10 n.4; Defs.’ Mot. at 4. They disagree, however, over whether Congress can constitutionally subject such military retirees to court-martial jurisdiction.

The Government argues that because Congress has determined military retirees are part of the "land and naval forces" and subjected them to court-martial jurisdiction, they must be so, ipso facto. See Defs.’ Mot. at 13. The Government relies on the Supreme Court's decision in Solorio , which deferred to Congress's judgment in holding that a servicemember can be tried by court-martial for an offense committed on his own time in the civilian community that has no connection to his military service, 483 U.S. at 446–47, 107 S.Ct. 2924.

...

To date, the Government has consistently cited two primary factors as justifying court-martial jurisdiction over military retirees: their receipt of retainer pay and their ability to be recalled to active-duty service. See Defs.’ Mot. at 14–24. Neither factor, however, suffices to demonstrate why military retirees plainly fall within the "land and naval forces" or why subjecting them to court-martial jurisdiction is necessary to maintain good order and discipline.

First, military retirees’ receipt of retainer pay does not suffice to subject them to court-martial jurisdiction. Under 10 U.S.C. § 8330(c)(1), members of the Fleet Marine Corps Reserve receive retainer pay when not on active duty. The Government's position rests on the longstanding, but largely inaccurate, assumption that this retainer pay represents reduced compensation for current part-time services.

...

The Supreme Court reversed course from Tyler in 1992 when it determined that for purposes of tax treatment, military retirement benefits actually represent deferred pay for past services. Barker v. Kansas , 503 U.S. 594, 605, 112 S.Ct. 1619, 118 L.Ed.2d 243 (1992).

...

Additionally, receipt of military retirement benefits has never been enough, by itself, to subject a class of individuals to court-martial jurisdiction. In Reid , the Supreme Court rejected the Government's position that civilian dependents of servicemembers who received military benefits were therefore part of the "land and naval Forces" and subject to court-martial jurisdiction.

...

Second, the possibility of recall to active-duty service does not suffice to subject military retirees to court-martial jurisdiction. Indeed, the Supreme Court itself emphasized early in its jurisprudence regarding court-martial jurisdiction that the right to trial by jury—"one of the most valuable in a free country—is preserved to every one accused of [a] crime who is not attached to the army, or navy, or militia in actual service." Ex parte Milligan , 71 U.S. (4 Wall.) 2, 122–23, 18 L.Ed. 281 (1866). Yet despite that instruction, Congress has steadily expanded court-martial jurisdiction over time, reaching its current scope in 1950 when it explicitly included retirees in the Fleet Marine Corps Reserve and individuals on retirement lists who are not in active-duty service or on active-duty training. See 10 U.S.C. § 802(a)(4), (6). The Government not surprisingly contends that the mere possibility of recall to active-duty service suffices to subject military retirees to court-martial jurisdiction.

...

While both sides are correct in some ways, the bottom line remains the same: military retirees are highly unlikely to be recalled, even though their service may be necessary in some future national emergency. This disagreement, however, loses sight of the ultimate question: whether the Government has adequately demonstrated that court-martial jurisdiction over military retirees is necessary to maintain good order and discipline. See Toth , 350 U.S. at 22, 76 S.Ct. 1 ("Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service." ) . Indeed, Congress's current treatment of inactive members of the Reserve components calls into question whether court-martial jurisdiction over military retirees is actually necessary to such end. Under Article 2(a) of the UCMJ, members of the Reserve components are subject to court-martial jurisdiction only while serving on their regular active-duty periods and while on inactive-duty training, but not when in inactive status. See 10 U.S.C. § 802(a)(3). Because military retirees are much less likely to be recalled to active-duty service than Reservists are, the distinction in whether these two similar groups are subject to court-martial jurisdiction seems arbitrary at best. Indeed, under the current regime, a retired member of the Army and an inactive member of the Army Reserve who get into a bar brawl would face two entirely different systems of justice: the Army retiree could be hauled before a court-martial and tried by a military judge and active military officers, whereas the Army Reservist would be entitled to indictment by a grand jury and trial by a civilian jury of his peers overseen by an impartial judge. Please!


...

Moreover, the current scope of court-martial jurisdiction disregards the obvious fact that some military retirees face virtually no prospect of recall to military service at all, whether because of their age, physical condition, or disability. See DoD Instruction 1352.01, ¶ 3.2(g)(2) (2016) (limiting recall of "Category III retirees"—those who are retired due to disability or who are over 60 years of age—to civilian defense jobs). Further, the Government readily acknowledges that, absent court-martial jurisdiction, military retirees who face state or federal criminal prosecution for offenses committed after retirement could still be administratively separated from the service.

To say the least, it is difficult to square these distinctions with the demands of good order and discipline that are the principal objectives of their military's court-martial jurisdiction. To be clear, I am not concluding today that Congress could never authorize the court-martial of some military retirees, but merely that Congress has not shown on the current record why the exercise of such jurisdiction over all military retirees is necessary to good order and discipline. Indeed, the Government points to no clear statements by members of Congress upon passing the Uniform Code of Military Justice that explain the necessity of subjecting all military retirees to court-martial jurisdiction. Because the Supreme Court has consistently emphasized that court-martial jurisdiction should be narrowly circumscribed, e.g. , Toth , 350 U.S. at 23, 76 S.Ct. 1, I must conclude that in the absence of a principled basis promoting good order and discipline, Congress's present exercise of court-martial jurisdiction over all members of the Fleet Marine Corps Reserve is unconstitutional.


----------





TL;DR - the US District Court for the District of Columbia found the exercise of court martial jurisdiction over military retirees to be unconstitutional last year.

Unless and until they are reversed, they are going to find the same thing again.

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Response to 40RatRod (Original post)

Mon Feb 7, 2022, 11:02 AM

30. I would guess there is a significant number of the

top military leaders that back an authoritarian government. After all the military is authoratarian itself. In
all coups isn't it factions of the military that back them.

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Response to 40RatRod (Original post)


Response to 40RatRod (Original post)

Mon Feb 7, 2022, 10:09 PM

46. Treason is not an offense under the UCMJ.

Nowhere in the UCMJ (10 USC Ch. 47) does it even mention treason (bizarre isn't it). In order to prosecute for treason the civilian justice system must be used.

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