Hanging with the Henry's: Free Speech and the Marines

Oh...can't miss this one. A hearing is being held for a local marine who, according to reports:

Kokesh, 25, took part in an anti-war protest in Washington, D.C., in March. When he was identified in a photo caption in The Washington Post, a superior officer sent him a letter saying he might have violated a rule prohibiting troops from wearing uniforms without authorization.

Kokesh responded with a letter than contained an obscenity.

Kokesh is a member of the Individual Ready Reserve, which consists mainly of those who have left active duty but still have time remaining on their eight-year military obligations.

There's the kicker, right in the middle. He responded to his superior officer with an obscenity. However, his attorney says:

Lebowitz said Kokesh technically is a civilian unless recalled to active duty and had the right to be disrespectful in his response to the officer. He said the military usually seeks to change a veteran’s discharge status only if a crime has been committed.

Unfortunately, that little response may have led the officer to decide that Kokesh's actions wearing his uniform at the rally was intentional and pushed it on for administrative action. In which case, even though he was technically discharged, he was on IRR and they can go back and change the nature of his discharge.

Demonstrators in the area are saying his free speech rights are being trampled. The military says that he can say what he wants, but not in uniform and not to a superior officer. Now, the question is, is the military cutting this rather fine? Can they charge him with offending a superior officer while he is not on active duty? Yes. Should they? Making a mountain out of a mole hill, maybe, and giving this guy all the press he could want.

Still, I haven't seen the video with the pictures from the protest rally, so I don't know how "un-uniform" his stated changes of removing badges and such made his uniform.

This whole discussion has had my brother and I having a large argument about whether his free speech rights are being trampled. I said that he was not being charged for speaking his mind, but for speaking it in uniform. My brother claims that the guy wouldn't be charged if he had said he supported the military.

I think the guy would have been fine if he had not cursed the officer on the other end of the email, but said that he had made a fair effort to change his appearance and would continue to make an effort not to break the rules. It is all about how you play the game, even in the rule bound military.

My brother said that the military just wanted to persecute/prosecute the guy because he spoke out against the war and it had nothing to do with the uniform. I said that the military and the United States government owns the uniform and its "brand", thus the guy cannot use it to make a statement contrary to the government or the stated mission of the US military.

My brother said that the guy went to Iraq and earned the right to wear it. I said he did not earn the right to wear it, in public, off duty, while speaking publicly on political matters.

My brother said that he could go down to Mickey's surplus and buy the same uniform today, stand around and say he was in the military or had served while protesting the war. Should he get arrested for wearing it? I said that, yes, he should, but not because he was protesting the war, but because a) he would be breaking the law that says you cannot impersonate a member of the military, but b) since you would be fake, having never served or signed a contract to do so, you would not be charged by the military but civilian authorities.

This Marine signed a contract that included up to four years as a reserve. Under such a contract, the UCMJ is the pre-eminent law when acting in uniform or as a representative of the military in any capacity, spoken, written word or physical actions.

My brother claims that big brother is just trying to keep people from speaking, particularly soldiers who have served. He claims that they have been to the war and have more rights to speak than we do.

I told him that was bogus, because we are American Citizens and we are given that right to free speech, not because we have worn a uniform or done anything else exceptional beyond being a citizen. If we went by such logic, than we would have a military government running our country since it is the military that always goes to war.

He said it's about who bears the burden most. I said it's about "we the people" directing our nation and, in any case, if we followed his logic, than we would continue to be at war in Iraq since it appears the military generally supports the mission. We might be doing something else there, but we would be there.

My brother claims that the guy did nothing wrong and the military is just prosecuting him for speaking out.

I said that the guy broke the rules, even as an IRR, and should bear the consequences.

According to the news, if Kokesh loses, this may be pushed on for courts martial. At this time, it is simply an administrative hearing to decide whether it should be pursued or not. He may simply be given an AR-15. If this goes on, Kokesh stands to lose his veterans benefits and will have to pay back over $10k in student loans.

(This discussion was had this morning while I waited at my brother's for a my mom. This is my youngest, non-military brother. Military brother has not commented on the subject)