Calif judge to stop 'don't ask, don't tell' policy

[b322da]

It's time that the people of this nation held Congress accountable for what Congress does and refuse to accept the political blame-shifting they constantly engage in to avoid responsibility for the laws that they pass.

Agreed, baldeagle. Is not the example of the provision perhaps under consideration by the Senate next week just one more example of this, where it requires the certification of both the President and the Secretary of Defense that the military is ready for the change before the repeal of DADT becomes effective?

Or, just perhaps, might this passage of the buck send it right where, in this case at least, the final decision should be made?

Elmo

[Purplehood]

As many of us know, when it comes right down to it the Military is going to do whatever its CinC/Congress tell it to do. Regardless of how we feel about it.
Note: This blanket statement presumably does not apply to orders of a Constitutionally-questionable nature, and I hope that it never comes up.

[bdickens]

That's exactly what I'd tell my troop. Suck it up. Live with it. Life is not about what PVT Snuffy does and does not like.

No, it wasn't my job as an NCO to cater to my soldier's prejudices. Prejudice has no place in the US military. And it wasn't my job to take care of them, either. It was my job to train them to take care of themselves.

As an NCO you should know that Our job is to enforce Rules and Regulations not to interpret them. If someone did not shave or get a haircut for two weeks would you tell others to find a straw and suck it up? What if they were known to drive drunk every weekend on their liberty but made it back every Monday morning for formation how long would you tell them to "drive on". My point being there is no distinction between your personal life and your professional life in the military

Are you having difficulty with your reading comprehension, or did you miss this post:

Well, as an NCO, all I really cared about is whether or not they could do their jobs, pass their PT tests and maintain their appearance and Military Bearing, not who they bedded down with.

If someone's sexual preferences make you uncomfortable, you need to suck it up and drive on.

Oh, believe you me, I enforced regulations and orders. Believe you me. I was the guy who had two of his soldiers with defective irons stand inspection in the day room at 19:00hrs every day for a week - Saturday and Sunday, too - spending an hour running upstairs and back down changing from one uniform to the other. I was the guy who had a soldier do TA-50 layouts several times a day on Saturday and Sunday because his stuff was all jacked up when the Company did it.

I was also the guy who forced the Company Commander to approve my soldier's leave after he tried to deny it because that soldier was flagged. I shoved the regulations in his face and educated him that leave is an entitlement and not a favorable action. I enforced the Regulations alright. Up as well as down.

With due respect to your service, I believe a leader's job is to "lead" them, and maintaining morale is a large part of leadership. If DADT is in place as a military regulation, it's every NCO/Officer's job to enforce it whether you "agree with it" or not. I think our military commander's main concern with abolishing DADT is a lowering of morale. A demoralized force is a poor fighting force. Just MHO.

You know, that's what they tried to say when Truman ordered the services to integrate. Another part of a leader's job is to root out prejudice and disallow it from being expressed.

Some of you seem to forget that soldiers are required to disobey orders that are illegal and/ or immoral.

[psijac]

Are you having difficulty with your reading comprehension, or did you miss this post:

Well, as an NCO, all I really cared about is whether or not they could do their jobs, pass their PT tests and maintain their appearance and Military Bearing, not who they bedded down with.

I enforced the Regulations alright. Up as well as down.
Some of you seem to forget that soldiers are required to disobey orders that are illegal and/ or immoral.

sorry I guess I glazed over the red part.


What I think your point is: the military has no authority to hold you to any standard in your personal life

My point: The military must have final control of your professional and personal life to succeed in it's mission.

Saying what or even who a persons does in their off time is no of the military business is inaccurate at best because aside from leave they have no real off time they are always on duty. Other you would have no authority to run inspection on Saturday and Sunday.

And yes the military should not be regulation our sexuality but they already do. There are UCMJ articles against sodomy and adultery, yet everyone fights against DADT. I find it that Bill Clinton the president that created DADT found the anti gay stance of the military at the time unacceptable but anti adultery was okay.

[Purplehood]

Are you having difficulty with your reading comprehension, or did you miss this post:

Well, as an NCO, all I really cared about is whether or not they could do their jobs, pass their PT tests and maintain their appearance and Military Bearing, not who they bedded down with.

I enforced the Regulations alright. Up as well as down.
Some of you seem to forget that soldiers are required to disobey orders that are illegal and/ or immoral.

sorry I guess I glazed over the red part.


What I think your point is: the military has no authority to hold you to any standard in your personal life

My point: The military must have final control of your professional and personal life to succeed in it's mission.

Saying what or even who a persons does in their off time is no of the military business is inaccurate at best because aside from leave they have no real off time they are always on duty. Other you would have no authority to run inspection on Saturday and Sunday.

And yes the military should not be regulation our sexuality but they already do. There are UCMJ articles against sodomy and adultery, yet everyone fights against DADT. I find it that Bill Clinton the president that created DADT found the anti gay stance of the military at the time unacceptable but anti adultery was okay.

IMHO the whole thing is hypocritical. The Military should not be concerning itself with outing yourself as favoring one sexual preference over another. It should only be an issue if a Military member does something that violates the UCMJ, and at that point you discipline them.

[b322da]

IMHO the whole thing is hypocritical. The Military should not be concerning itself with outing yourself as favoring one sexual preference over another. It should only be an issue if a Military member does something that violates the UCMJ, and at that point you discipline them.

You have nailed it, Purplehood. I was so pleased to see this come from one of those who has seen it all, for long enough to be honorably retired. Between all the huffing and puffing we have seen here it appears to remain the case that if DADT is eliminated by either the judiciary, the executive, or the congress, or some mixture of the three, I don't think anyone has seriously suggested the repeal of Articles 120, 125 or 134 of the UCMJ. Essentially all that we would expect to change is that a military member would not be eligible for administrative discharge simply for being gay, though not engaging in homosexual acts or conduct subject to punishment under the UCMJ.

[G26ster]

Some of you seem to forget that soldiers are required to disobey orders that are illegal and/ or immoral.

A soldier is required to follow "lawful" orders and regulations. The definition of a unlawful order is one where the one being ordered is required to commit an unlawful act. What part of DADT is illegal or immoral? I don't think I "forgot" anything.

[b322da]

Some of you seem to forget that soldiers are required to disobey orders that are illegal ....

Some of us will never forget that, Byron. I am a an example myself, and I will never forget that horrible experience.

I once had to tell my commander, who wore stars, that I could not do what he had just told me to do, as I considered the order to be clearly unlawful, and why, and that if he repeated the order I would have no choice but to disobey his order.

Under extreme pressure, standing at attention in front of his desk, with no time to go look in the books or talk to a lawyer, I had no choice but to make one of the most difficult decisions a member of the military can be called upon to make, when all his training has taught him that there was only one answer acceptable: "Yes, sir." Had he "called my bluff," if you will, I might have been convicted by a court-martial, dismissed, spent a long time in a military prison, and had my life ruined.

After just a few moments of thought, he said to me, "OK, what should I do instead?" He, a fine gentleman, had obviously acted quickly, without taking the time to give the matter the serious thought it required before giving the order. You who have served, Byron, will recognize this as often being the hallmark of a fine commander. Sometimes they do not have time to turn to the books or their lawyers, either. He was brave enough, and honest enough, to mention this incident in his next rating of my performance as being to my credit, and I have always felt it was very much to his credit, and I respect him as one of the finest commanders I ever had. Many, if not most, commanders of his rank are not accustomed to voluntarily admitting that they had made a mistake.

To demonstrate how hard it was for me, at the time, to this day I am not sure that a military judge would have agreed with me had I had to disobey that order. With the leisure of hindsight and doing that research I did not have time to do on the spot, I am convinced that I made the right decision.

Elmo

[b322da]

The definition of a unlawful order is one where the one being ordered is required to commit and unlawful act.

I would suggest that your definition is only part of the definition of an unlawful order. An order is also unlawful if the person giving the order does not have the authority to do so.

[G26ster]

Some of you seem to forget that soldiers are required to disobey orders that are illegal ....

Some of us will never forget that, Byron. I am a an example myself, and I will never forget that horrible experience.

I once had to tell my commander, who wore stars, that I could not do what he had just told me to do, as I considered the order to be clearly unlawful, and why, and that if he repeated the order I would have no choice but to disobey his order.

Under extreme pressure, standing at attention in front of his desk, with no time to go look in the books or talk to a lawyer, I had no choice but to make one of the most difficult decisions a member of the military can be called upon to make, when all his training has taught him that there was only one answer acceptable: "Yes, sir." Had he "called my bluff," if you will, I might have been convicted by a court-martial, dismissed, spent a long time in a military prison, and had my life ruined.

After just a few moments of thought, he said to me, "OK, what should I do instead?" He, a fine gentleman, had obviously acted quickly, without taking the time to give the matter the serious thought it required before giving the order. You who have served, Byron, will recognize this as often being the hallmark of a fine commander. Sometimes they do not have time to turn to the books or their lawyers, either. He was brave enough, and honest enough, to mention this incident in his next rating of my performance as being to my credit, and I have always felt it was very much to his credit, and I respect him as one of the finest commanders I ever had. Many, if not most, commanders of his rank are not accustomed to voluntarily admitting that they had made a mistake.

To demonstrate how hard it was for me, at the time, to this day I am not sure that a military judge would have agreed with me had I had to disobey that order. With the leisure of hindsight and doing that research I did not have time to do on the spot, I am convinced that I made the right decision.

Elmo

I admire the position you took. Disobeying a verbal order that, as you say was, "clearly" unlawful was the only acceptable thing to do. The question is, until specific military codes or regulations are deemed by the courts to be unlawful, they are standing lawful orders. Until such time as they are declared unlawful (requiring a member to commit a crime if followed), then duty requires that they be followed. As for DADT, no one is being asked to commit a criminal act by enforcing the regulation. Whether DADT is constitutional or not is not the issue, as many regulations and UCMJ codes "restrict" civilian constitutional rights. My only point is that DADT and related regulations are "currently" lawful. This is my opinion.

[b322da]

The question is, until specific military codes or regulations are deemed by the courts to be unlawful, they are standing lawful orders. Until such time as they are declared unlawful (requiring a member to commit a crime if followed), then duty requires that they be followed.

I'm sorry, G26ster, but that is just not a correct statement of military law. Some orders are just plain inherently unlawful. Certainly you would not suggest that when Adolf Hitler ordered Heinrich Himmler to kill Jews without trial and conviction, when we may assume no court of competent jurisdiction in Germany had ruled this to be unlawrul, the order could be assumed by Himmler to be lawful? Or put another way, would you suggest that when Himmler carried out Hitler's order it was not unlawful until the judgment was handed down at Nuremberg? Of course Himmler did not live that long, but many other Nazis were convicted of war crimes and crimes against humanity, and "I was just following orders" was no defense, even if failure to obey the order would have cost him his own life. This is an extreme example, but sometimes extreme examples are needed to drive home a point.

This point was the greatest lesson from the Nuremberg trials: one does not have to obey unlawful orders, even when the order has never been declared by a competent court to have been unlawful.

To be more specific, in my particular case, had the order to me been repeated, and had I disobeyed the order, then went to trial by court-martial at which the order was held to have been unlawful, the order was unlawful from the very beginning, when it was initially issued, and my acquittal would have just proved it.

I, quite seriously, do not mean to pick on you, but, with the greatest of respect, in my opinion we have too many people out there, both in and out of military service, who misapprehend many important aspects of military law, and for me to sit quietly when it appears to me that it is being misstated would make me a party to the misstatement.

[G26ster]

The question is, until specific military codes or regulations are deemed by the courts to be unlawful, they are standing lawful orders. Until such time as they are declared unlawful (requiring a member to commit a crime if followed), then duty requires that they be followed.

I'm sorry, G26ster, but that is just not a correct statement of military law. Some orders are just plain inherently unlawful. Certainly you would not suggest that when Adolf Hitler ordered Heinrich Himmler to kill Jews without trial and conviction, when we may assume no court of competent jurisdiction in Germany had ruled this to be unlawrul, the order could be assumed by Himmler to be lawful? Or put another way, would you suggest that when Himmler carried out Hitler's order it was not unlawful until the judgment was handed down at Nuremberg? Of course Himmler did not live that long, but many other Nazis were convicted of war crimes and crimes against humanity, and "I was just following orders" was no defense, even if failure to obey the order would have cost him his own life. This is an extreme example, but sometimes extreme examples are needed to drive home a point.

This point was the greatest lesson from the Nuremberg trials: one does not have to obey unlawful orders, even when the order has never been declared by a competent court to have been unlawful.

To be more specific, in my particular case, had the order to me been repeated, and had I disobeyed the order, then went to trial by court-martial at which the order was held to have been unlawful, the order was unlawful from the very beginning, when it was initially issued, and my acquittal would have just proved it.

I, quite seriously, do not mean to pick on you, but, with the greatest of respect, in my opinion we have too many people out there, both in and out of military service, who misapprehend many important aspects of military law, and for me to sit quietly when it appears to me that it is being misstated would make me a party to the misstatement.

The orders of Hitler and his henchmen were "clearly" unlawful as they required commission of "illegal criminal acts" (murder). I ask, what part of DADT requires the commission of an illegal criminal act by it's issuance or by being followed? If you are a military lawyer, please say so, and explain where I am wrong. The courts in Germany had no bearing on Crimes Against Humanity or the Laws of Land Warfare.

[b322da]

The orders of Hitler and his henchmen were "clearly" unlawful as they required commission of "illegal criminal acts" (murder). I ask, what part of DADT requires the commission of an illegal criminal act by it's issuance or by being followed? If you are a military lawyer, please say so, and explain where I am wrong. The courts in Germany had no bearing on Crimes Against Humanity or the Laws of Land Warfare.

Here we go again, and I would suggest that we are both generating heat but no light.

a. I tried very carefully to make it clear that what Himmler did in response to Hitler's order had not been determined by a court of competent jurisdiction to be unlawful. Indeed, I suspect that any judge in the Third Reich which might have held an order of the Fuhrer to be illegal would not have been long for this world. The fact that something is unlawful in the U.S. does not mean that it is unlawful for a German to do it in Germany if the law in Germany does not also make it unlawful. I was also careful to use the expression "a court of competent jurisdiction."

b. Please point out when and where I suggested that any "part of DADT requires the commission of an illegal criminal act by its issuance or by being followed?" Perhaps you meant to address this question to somebody else? Or is one of us confusing "unconstitutional" with "criminal?"

[Hoi Polloi]

Here we go again, and I would suggest that we are both generating heat but no light.

a. I tried very carefully to make it clear that what Himmler did in response to Hitler's order had not been determined by a court of competent jurisdiction to be unlawful.

I think it is a fascinating discussion and I'm following along, agreeing with statements made by many of opposing viewpoints.

This one particular point is something I want to respond to. I don't have the time or energy to search for competent records, but this statement cannot be true. Aside from natural law, there are human rights issues involved in genocide and murder orchestrated by governments which have extensive case history throughout human history. There is surely a case or ten before the 1930s that would apply. Indeed, the majority of the war criminals were tried under the existing military and criminal courts and not by the Nuremburg trials. That means they were tried and convicted on the actual German military laws.

Because the government orchestrating genocide would not deem it improper does not mean it was so because there are governing conventions that are bigger than singular governments which would override the abusive local laws.

[G26ster]

The orders of Hitler and his henchmen were "clearly" unlawful as they required commission of "illegal criminal acts" (murder). I ask, what part of DADT requires the commission of an illegal criminal act by it's issuance or by being followed? If you are a military lawyer, please say so, and explain where I am wrong. The courts in Germany had no bearing on Crimes Against Humanity or the Laws of Land Warfare.

Here we go again, and I would suggest that we are both generating heat but no light.

a. I tried very carefully to make it clear that what Himmler did in response to Hitler's order had not been determined by a court of competent jurisdiction to be unlawful. Indeed, I suspect that any judge in the Third Reich which might have held an order of the Fuhrer to be illegal would not have been long for this world. The fact that something is unlawful in the U.S. does not mean that it is unlawful for a German to do it in Germany if the law in Germany does not also make it unlawful. I was also careful to use the expression "a court of competent jurisdiction."

b. Please point out when and where I suggested that any "part of DADT requires the commission of an illegal criminal act by its issuance or by being followed?" Perhaps you meant to address this question to somebody else? Or is one of us confusing "unconstitutional" with "criminal?"

OK, let's start here.

1. The crimes that were tried at Nuremberg were not based on German law. They were based on the laws set down by The London Charter of the International Military Tribunal. They defined Crimes Against Humanity defined as:

"Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or [/color]religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated".

Therefore German law at the time is moot.

2. I'm not sure if you are saying it is unconstitutional or unlawful. There are two different questions. First is is it lawful, and second, is it constitutional?

a) Is the order requiring DADT lawful. I would say yes, as there is no requirement to commit an illegal or criminal act, either in U.S. law or law overseen by the International Criminal Court.

b) Is DADT constitutional? In the civilian world, I would say no. In the military I would say yes, as we lose "some" of our constitutional guarantees while serving ( i.e. free speech, assembly, etc.)

Now we can disagree, and that's fine. I am not a military lawyer but I served 23 years as an enlisted man, NCO, and Commissioned Officer. Appears that you served also. I asked, if you were a military lawyer, to correct me. If you are, please do so. if not, then we simply have a difference of opinion. I was careful to say what I stated was my opinion. Not everyone's opinion is the same.

Now, as at least 6 million of my people were murdered by the Nazi's, so forgive me if I don't equate orders not to reveal one's homosexuality in the military, with orders to murder innocent civilians by the millions at the same level of "unlawful." I'm sure I have a prejudice here. I realize that DADT is a major rights issue for gays, and I'm not trying to downplay that. I am simply saying it is up to congress and/or the courts to decide it's legality.